PAKASANAN MANJAPPALLYKKUNNEL HOUSE, VAZHAPPADY BHAGOM, AYARKUNNAM VILLAGE v. STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2015-10-05
Court Decision / Holding: The revision petition is allowed; the conviction and sentence under Sections 452 and 354 IPC are set aside, and the revision petitioner is acquitted. The bail bond is cancelled and he is released.
Final Disposition: Acquitted; conviction and sentence set aside; bail bond cancelled; released on liberty.

Parties to the Case

Appellants / Petitioners

Pakasanan Manjappallykkunnel House, Vazhapaddy Bhagom, Ayarkunnam Village

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Vijaya Bhanu
• Sri SMT. P. Maya

Counsels for Respondents

• Public Prosecutor Sri. V. S. Sreejith

Case Synopsis & Summary

This Kerala High Court criminal revision petitions challenges the concurrent conviction of the accused for offences under IPC sections 452 (house trespass) and 354 (outraging modesty) by the trial court, and the affirmation of that conviction on appeal. The REVISION PETITIONER, alleged to have trespassed into PW4’s residence around 8 a.m. on 2 September 2005, is accused of pulling PW4’s nighty and pressing her breast, causing pain. The trial court sentenced him to six months’ imprisonment and fines under both sections; the appellate court upheld the judgment in Crl. Appeal 326/2008. In the revision, the prosecution relied on the testimony of PW4 and PW6, and medical evidence by PW3 (who found no external injury). The defense argued the absence of independent corroboration from neighbours, and suggested PW4’s allegation was an attempt to recover money allegedly owed by PW4’s husband to the accused, supported by Ext. D1 (a decree for Rs.38,000). The court scrutinized the delay in filing the FIR and the lack of corroboration, noting that neighbours did not corroborate PW4’s version and that PW4’s account suffered from unexplained delay in FIR dispatch. Citing Balram Singh v. State of Punjab, the court held that delay must be weighed against the credibility of ocular evidence. Finding insufficient evidence to connect the accused beyond reasonable doubt, the court allowed the revision petition and acquitted the accused, while cancelling his bail bond and ordering liberty.

Provisions of Law Cited

Section 452 IPCSection 354 IPC

Legal Doctrines & Maxims

Credibility of ocular evidence and its relation to delay in FIR (Balram Singh principle)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant argued there was no independent corroboration from neighbours and that PW4’s allegations were false, possibly motivated by a money-transaction dispute. Ext. D1 shows a money decree against PW4’s husband, suggesting motive to fabricate. There was unexplained delay in FIR and no external injuries noted by the medical examination, undermining the prosecution case. The lower courts erred in relying on oral testimony lacking corroboration, and the guilt could not be established beyond reasonable doubt.

Contentions of Respondents

The prosecution contended that the ocular account of PW4, supported by PW6 and medical evidence, established guilt; however, the delay in FIR and lack of corroboration need to be weighed, and the credibility of witnesses must be assessed in light of the circumstances and the record.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Balram Singh and Another v. State of Punjab	AIR 2003 SC 2213	Positive	The court cites Balram Singh to emphasize considering delay in FIR in light of the credibility of ocular evidence and to weigh the prosecution’s reliance on such evidence.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 5TH DAY OF OCTOBER 2015/13TH ASWINA, 1937** **Crl.Rev.Pet.No. 1817 of 2009 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL 326/2008 COURT OF THE ADDITIONAL SESSIONS JUDGE(ADHOC)-I, KOTTAYAM DATED 09-02-2009** **AGAINST THE JUDGMENT IN CC 706/2005 of COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-III, KOTTAYAM DATED 29-04-2008** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **-------------------------------------** **PAKASANAN MANJAPPALLYKKUNNEL HOUSE, VAZHAPPADY BHAGOM, AYARKUNNAM VILLAGE.** **BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **---------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR SRI.V.S.SREEJITH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-10-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **Crl.R.P. No. 1817 of 2009** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of October, 2015 ## **ORDER** The revision petitioner is the accused in CC 706/2005, on the files of the Court of the Judicial Magistrate of First Class-III, Kottayam. 2. The revision petitioner was convicted by the trial court under Sections 452 and 354 IPC and sentenced to simple imprisonment for six months and a fine of Rs.1,000/- under Section 452 IPC and simple imprisonment for three months and a fine of Rs.1,000/under Section 354 IPC. The appeal filed against the said conviction and sentence was dismissed by the appellate court as per judgment in Crl. Appeal 326/2008. Aggrieved by the said conviction and sentence, this revision petition has been filed. ## 3. Heard. 4. The prosecution allegation is that on 02.09.2005, Crl.R.P.No.1817 of 2009 : 2 : at 8 a.m., the revision petitioner trespassed into the residential house of PW4 and uttered abusive words against her. The revision petitioner thereafter caught hold of the breast of PW4 over her nighty and caused pain to her. 5. Before the trial court, PW1 to PW6 were examined and Exts. P1 to P5 were marked for the prosecution, besides identifying MO1 and MO2. Ext.D1 was marked for the revision petitioner. 6. PW4 is the de-facto complainant in this case. According to PW4, on 02.09.2005, at about 8 a.m., the revision petitioner trespassed into her house and pulled her nighty by pressing her breast. The nighty and brassiere were torn in the said incident. PW6 is the son of PW4, who also supported the evidence of PW4. Even though PW1 was examined as an occurrence witness, he did not support the prosecution case. PW3 was the Assistant Surgeon of District Hospital, Kottayam, who examined PW4 on 02.09.2005, at 9 p.m. and issued Ext.P2 wound certificate. PW3 could not notice any sign of external injury on PW4. Crl.R.P.No.1817 of 2009 : 3 : 7. The learned counsel for the revision petitioner has argued that even though there were close neighbours, none of the neighbours was examined before the court to support the evidence of PW4 with regard to the occurrence and in the said circumstances, the revision petitioner is entitled to be granted benefit of doubt, particularly when the revision petitioner had a consistent case that PW4 had only falsely raised the above said allegation against the revision petitioner on the sole reason that the revision petitioner demanded back the money borrowed by her husband, from the revision petitioner. In order to substantiate the contention of the revision petitioner, the counsel for the revision petitioner brought to my attention to Ext.D1 document. Ext.D1 would show that the husband of PW4 borrowed an amount of Rs.38,000/- from the revision petitioner on 01.08.2005. PW4 also admitted about the borrowing of the amount from the revision petitioner. Ext.D1 is the judgment whereby the revision petitioner was granted a decree, entitling him to realise an amount of Crl.R.P.No.1817 of 2009 : 4 : Rs.38,000/- with interest from the husband of PW4. 8. The evidence of PW6 would show that when he reached the house on hearing the cry of his mother, he saw a person inside the house. He also saw PW4 crying. Only when the learned Assistant Public Prosecutor put a leaving question as to whether PW6 had seen the pulling of the nighty of PW4, PW6 answered in affirmative. However, PW6 did not identify the accused. Admittedly, the incident was at 8 a.m., at a place which is a residential area. The evidence of PW4 would show that there were houses very close to her house. Even then, none of the neighbours was examined by the prosecution to prove the occurrence. PW4 did not state that the neighbours reached the place of occurrence on hearing the cry of PW4. It is not discernible as to why the neighbours did not assemble there, on hearing the cry of PW4. In this context, the delay in reaching the FIR before the court assumes significance. PW5 was the Sub Inspector of Police who registered Ext.P4 FIR in this case. PW5 stated that he recorded Ext.P3 Crl.R.P.No.1817 of 2009 : 5 : F.I. Statement of PW4, in the evening on 02.09.2005. However, Ext.P4 was received by the court only at 10.30 a.m. on 05.09.2005. No explanation has been given by PW5, as to why there was delay in reaching Ext.P4 before the court. A three Judge Bench of the Apex court in **Balram Singh and Another v. State of Punjab [AIR 2003 SC 2213]** held that while considering the delay in reaching the FIR before the jurisdictional Magistrate, it is necessary to bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if it is found that the ocular evidence is worthy of acceptance, the element of delay in sending the FIR to the Jurisdictional Magistrate by itself would not weaken the prosecution case. 9. In this case, no reason has been stated by the prosecution as to why there was delay in despatching of the first information report to the Court. The revision petitioner had a contention that PW4 used to raise similar allegations against other persons also to whom PW4 owed money, when they demanded the money back. The evidence of Crl.R.P.No.1817 of 2009 : 6 : PW3 would show that no sign of external injury was noted on the body of PW4. Apart from the interested testimony of PW4, there is absolutely no material before the court to support the prosecution case. Considering the facts and circumstance of the case, the inordinate and unexplained delay in reaching Ext.P4 FIR before the court assumes significance in this case. In the said circumstances, I am of the view that the evidence of PW4 and PW6 is not sufficient to prove the guilt of the revision petitioner. The courts below did not consider the above aspect while appreciating the evidence. Since there is no other material before the court to connect the revision petitioner with the commission of the offence, I am of the view that the verdict of guilty, conviction and sentence passed by the courts below cannot be sustained and consequently, I set aside the same. In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 452 and 354 IPC and the revision petitioner is acquitted for the said offences. The Crl.R.P.No.1817 of 2009 : 7 : bail bond of the revision petitioner stands cancelled and he is set at liberty. Sd/- **B.SUDHEENDRA KUMAR JUDGE** //TRUE COPY// P.A.TO JUDGE sm/