Rajan and Nandakumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 5TH DAY OF AUGUST 2013/14TH SRAVANA, 1935** **Crl.Rev.Pet.No. 1575 of 2002 ( ) ---------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA 368/2000 of III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK NO.I THRISSUR DATED 08-08-2002** **AGAINST THE ORDER/JUDGMENT IN CC 630/1997 of J.M.F.C.,WADAKKANCHERRY DATED 28-07-2000** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED:** **------------------------------------------** **1. RAJAN, S/O. GOPALAN, SWARAKAYIL, VADAKKUMMURI, KADUMGOD VILLAGE.** **2. NANDAKUMAR S/O. RAJAN, SWARAKAYIL, VADAKKUMMURI, KADUMGOD VILLAGE.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** **RESPONDENT /RESPONDENT/COMPLAINANT:** **-------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY P.P.SRI. ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P. BHAVADASAN, J.** ...................................................... Crl.R.P.NO.1575 of 2002 ...................................................... Dated this the 5[th] day of August, 2013 ## **O R D E R** In respect of an incident which took place on 5.4.1996 at 7.30 a.m, PW1 lodged a complaint which resulted in registration of Crime as per Ext.P5 FIR. 2. The allegation was that while PW1 and her husband were going to the field of one Ayyappaswami, the accused persons, who were in their field, run towards them. The first accused among them asking whether they would let their goat enter into the property of the accused, pulled PW1's maxi and she was beaten by the first accused. When PW2, her husband, came to the aid of PW1, he was attacked by the second accused who kicked and fisted on his abdomen. 3. After the investigation, final report was laid on which cognizance was taken by the court concerned. On pleading not guilty to the charge, prosecution examined Pws 1 to 8, marked Exts.P1 to P6 and MO1 was identified. On the defence side, Ext.D1 was also marked. 4. After closing the prosecution evidence, both the accused were questioned under Section 313 Cr.P.C. They 2 Crl.R.P.NO.1575 of 2002 denied all the incriminating circumstances and contended that they have been falsely implicated. 5. Since the accused did not chose to adduce any defence evidence, the trial court after appreciation of the evidence, found the accused guilty of the offences punishable under Sections 354 and 323 read with Section 34 IPC. Both of them were convicted and sentenced to undergo rigorous imprisonment for one year for the offence under Section 354 IPC and also sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- each and in default, to undergo rigorous imprisonment for three months for the offence under Section 323 read with Section 34 IPC. It was also directed that, if fine amount is collected, the entire amount was directed to be paid to PW1 as compensation. 6. It is pointed out that the accused carried the matter in appeal before the Sessions Court, Thrissur. The said court while confirming the conviction and sentence for the offence under Section 354, ordered to pay a fine of Rs.2,000/- each and in default, to undergo simple imprisonment for two months. The accused were also sentenced to pay a fine of Rs.1,000/each and in default to undergo simple imprisonment for one Crl.R.P.NO.1575 of 2002 3 month for the offence under Section 323 read with Section 34 IPC. The fine amount, if realised was directed to be paid to the victim as compensation. 7. The learned Senior Counsel appearing for the revision petitioners assails the findings on several grounds. It is pointed out by the learned Senior Counsel that the evidence of Pws 1 and 2 would show that there are plenty of litigations between the parties and that the suggestion put to Pws 1 and 2 that the accused were falsely implicated to wreck vengeance is not without basis. The learned Senior Counsel points out that the accused may not have adduced any evidence but that is not sufficient to come to the conclusion that the prosecution has proved its case. The court below had come to the conclusion that the offence under Section 354 is made out. The necessary ingredients to attract that offence are not made out in this case. Merely because the maxi of PW1 is torn, is not a ground to come to the conclusion that it amounts to outraging the modesty of PW1. Relying on the decision reported in Sasidharan v. State of Kerala (2005 KHC 981), the learned Senior Counsel points out that in order to constitute an offence under Section 354, there must be an assault to any woman with the intention 4 Crl.R.P.NO.1575 of 2002 to outrage the modesty. 8. The learned Public Prosecutor on the other hand supporting the findings of the court below points out that both the courts below have found the evidence of Pws 1 and 2 to be convincing enough and had entered into a finding that they had committed the offences. The learned Public Prosecutor also points out that unless the findings are shown to be perverse, interference by this Court is not called for. Relying on the decision reported in Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 194), it is pointed out that in the case on hand the offence under Section 354 is also attracted. 9. That incident had taken place on the alleged day cannot be disputed. Both the courts have come to the conclusion that there was an attack on Pws 1 and 2. Both the courts held that evidence was sufficient to come to the conclusion that the accused persons have committed the offence under Section 323 IPC which does not call for interference at all. 10. Serious contention urged before this Court is regarding the applicability of Section 354 to the facts of this case on the basis of the evidence adduced in this case. It is Crl.R.P.NO.1575 of 2002 5 pointed out that there is no allegation that there was any sexual assault in the act committed by the first accused which resulted in tearing of the maxi. Therefore, the offence under Section 354 cannot be attracted. 11. The learned Public Prosecutor points out that any act which in violation of the modesty of a lady, is sufficient to attract provision. Going by the decision referred to, outraging of modesty is squarely made out. 12. In spite of best efforts, this Court finds it difficult to accept the contention put forward by the learned Public Prosecutor apart from the fact that Pws 3 and 4 only say about the scuffle between the parties. The question that arises for consideration is that even if the maxi of PW1 was torn, whether that by itself is sufficient to attract the provision under Section 354 IPC. Section 354 IPC reads as follows: “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. 6 Crl.R.P.NO.1575 of 2002 It contemplates an intention to outrage the modesty. Therefore, the act must be preceded by an intention to outrage the modesty of a woman and there should be some sort of sexual inclination exhibited by the act. 13. In the case on hand, accepting the evidence of PW1 in toto, all that she says that the first accused had torn her maxi uttering the words എന� പറമ�ല�ക� ആട�ന� കടത�വ�ട�ല��ട� (Will you let your goat into my property). The maxi was pulled, PW1 fell on the ground. The case is that she was beaten. It is difficult to apply the principle laid down in the decision reported in Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 1940. In the case on hand, even though it is claimed by PW1 that there was a push on the chest, there is no corresponding evidence to show that there is injury as a result of the act committed by the first accused. Utterness made by the first accused for pulling down PW1 does not show any indication on his part to cause any sexual abuse or assault. In fact, this aspect was considered in the decision reported in Sasidharan v. State of Kerala (2005 KHC 981). After considering the provision in detail, the court held as Crl.R.P.NO.1575 of 2002 7 ## follows: “10. In this case, the evidence adduced clearly shows that the victim was assaulted. But, that alone is not sufficient to convict the accused under S.354. It has to be proved that the accused assaulted the victim with intend to outrage her modesty. The allegation in the FIR was that the accused fisted the victim by catching hold of her hair because he did not like the action of the victim coming to his house and telling his mother about his behaviour towards the son of the victim. The evidence of Pws. 1 to 3 is also to that effect. There is absolutely nothing on record to show that the accused uttered any indecent words or he had any intention to use the victim to satisfy his lust. So, even if the entire evidence adduced by the prosecution is accepted, the same proves only an offence under S.352 of Indian Penal Code. The offence under S.352 is a lesser offence in relation to an offence under S.354 IPC. So, the revision petitioner is liable to be convicted for that offence in this proceedings itself. I alter the conviction of the revision petitioner from one under S.354 to S.352 of Indian Penal Code”. 14. The facts of the above case is almost similar to the one on hand. As found in the decision mentioned above, there is nothing to show that any of the act as alleged to have been committed by the first accused was with sexual intention. If that be so, the offence under Section 354 is not attracted. The evidence and complaint against the second accused is that he said to have attacked the husband of PW1 when he 8 Crl.R.P.NO.1575 of 2002 came to the aid of his wife. Second accused had no role what so ever in the first part of the incident. Whatever that be, it is extremely difficult to hold that the act complained of attracts offence under Section 354 IPC. Therefore, while confirming the conviction and sentence for the offence punishable under Section 323, the conviction and sentence under Section 354 IPC is set aside and the accused are found not guilty of the said offence. They are acquitted of the offence under Section 354 IPC. Sd/- **P. BHAVADASAN, JUDGE.** cl /true copy/ P.S. to Judge 9 Crl.R.P.NO.1575 of 2002 **P. BHAVADASAN, J.** ........................................... Crl.R.P.NO.1575 of 2002 ....................................... 5[th] day of August, 2013 **O R D E R**