Sasi, s/o Krishnan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934** **Crl.Rev.Pet.No. 135 of 2003** **------------------------CRA.238/2002 of COURT OF V ADDL. SESSIONS JUDGE,ERNAKULAM. CC.507/1998 of J.M.F.C.,KOLENCHERRY** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **SASI, S/O. KRISHNAN, PULILCKKUDI VEETTIL, IRAPURAM KARA VILLAGE.** **BY ADV. SRI.T.R.ASWAS** **COMPLAINANT(S)/RESPONDENT/COMPLAINANT::** **---------------------------------------** **STATE OF KERALA REP. BY S.I. OF POLICE, KUNNATHUNADU, THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA.** **PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Crl. R.P. No. 135 of 2003 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 30[th] day of October, 2012. **==> picture [68 x 12] intentionally omitted <==** The accused in C.C.No. 507/1998 before the Judicial First Class Magistrate, Kolenchery is the petitioner in this Criminal R.P. He was prosecuted for offences punishable under Sections 323, 325 and 354 read with Section 34 of the Indian Penal Code along with two others, who are his brother and father. The prosecution case was as follows: The accused, as a result of their previous enmity towards CW1, with the intention of causing bodily injuries to her, on 15.10.1997 at 10.30 a.m. , caught hold of CW1 and fisted on her face and other parts of her body and caused pain and loss of two teeth. The 2[nd] accused fisted PW1 on her stomach and pushed her down by catching her neck and also torn her dress and thus outraged her modesty in furtherance of their common intention. They thereby committed the offences punishable under Sections 323, 325 and 354, read with Section 43 of the Indian Penal Code. The Magistrate convicted all the accused. The 1[st] accused, who is the petitioner herein, was sentenced to undergo rigorous imprisonment for one year under Section 325 of the Indian Penal Code. He was also sentenced to undergo rigorous imprisonment for six months under Section 354 of the Indian Penal Code. Accused 2 and 3 were sentenced to undergo rigorous imprisonment for one month each under Section 323 of the Indian Penal Code. They were also sentenced to pay a fine of Rs. 1000/- each under Section 323. The fine, if realised, was Crl. R.P. No. 135 of 2003 -: 2 :- directed to be given to PW1 as compensation. The sentences of the 1[st] accused were directed to run separately. All the accused filed Crl. A. No. 238/2002 before the Vth Additional Sessions Judge, Ernakulam, who confirmed the conviction and sentence on the petitioner herein, but acquitted the other two accused. The petitioner is challenging the judgments of the courts below. 2. The petitioner raises two contentions. The first is that the appreciation of evidence by the courts below is perverse. According to him, all the so called eye witnesses turned hostile and the de facto complainant alone gave evidence in support of the prosecution case. According to the learned counsel for the petitioner, the evidence of PW1 was riddled with inconsistencies and discrepancies and the courts below went wrong in relying on the interested evidence of PW1. He submits that although the evidence of a solitary witness can be basis for a conviction, as laid down by the Supreme Court in **Bhimapa Chandappa Hosamani and others v. State of Kartnataka** , (2006) 11 SCC 323, the credibility of the witness has to be decided by reference to the quality of his evidence, which must be free from any blemish or suspicion and must so impress the court as wholly truthful and natural and convincing, that no court will have hesitation in recording a conviction solely on the basis of the testimony of the solitary evidence. According to the petitioner, the evidence of PW1 in this case does not answer the test laid down by the Supreme Court Crl. R.P. No. 135 of 2003 -: 3 :- for a conviction on the basis of a solitary witness, that too, that of an interested witness. The second contention is that the petitioner has been convicted under Section 354, whereas the facts of the case did not warrant a conviction under Section 354. The petitioner relies on the decision of this Court in **Sasidharan v. State of Kerala** , 2005 (3) KLT 185, wherein this Court has held that test of outrage of modesty must be whether a reasonable man think that the act of the offender was intended to or was known to be likely to outrage the modesty of the woman. In this case, according to the learned counsel for the petitioner, apart from the interested perception of PW1 that the petitioner has outraged her modesty, there is no evidence to show that the petitioner had any intention to outrage the modesty of the de facto complainant. 3. On the other hand, the learned Public Prosecutor would contend that the evidence of PW1 is cogent and convincing enough for a prosecution on the basis of her evidence alone. It is submitted by the learned Public Prosecutor that the evidence of PW1 has a ring of truth in it and although she has been elaborately cross examined by the defence, no discrediting material could be brought out in cross examination and she withstood the cross examination admirably well. The learned Public Prosecutor would contend that since in a revisional jurisdiction, what this Court considers is whether the appreciation of evidence is perverse or not and this Court Crl. R.P. No. 135 of 2003 -: 4 :- does not re-appreciate evidence, there is no reason to interfere with the judgments of the courts below since there is no perversity in the appreciation of evidence by the courts below. Regarding the contention of the petitioner that Section 354 is not attracted in this case, the learned Public Prosecutor would point out that in this case, there is clear evidence to show that the petitioner had torn off the dress of PW1 in public, which would amount to outraging of her modesty. He also relies on the decision of the Supreme Court in **Tarkeshwar Sadhu v. State of Bihar** , 2007(1) KLT S.N. 10 (Case No. 15), wherein the Supreme Court has held that the word “modesty” is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human being as a class. According to him, when a lady as a member of the class of the female human beings, when disrobed in public, that would amount to outraging of modesty, which is clearly proved in this case. 4. I have considered the rival contentions in detail. 5. As rightly pointed out by the learned Public Prosecutor, my jurisdiction under Section 397 of the Criminal Procedure Code is very limited in the sense that I cannot sit in appeal over question of facts decided by the courts below, but can interfere with the judgments only if the appreciation of evidence by the courts below is demonstrably perverse. Of course, in this case, the so called eye witnesses have turned hostile and the petitioner Crl. R.P. No. 135 of 2003 -: 5 :- has been convicted on the basis of the solitary evidence of the de facto complainant read with the medical evidence. I have gone through the evidence of PW1. I find that PW1 had been extensively cross examined by the accused. In fact, I find that many of the points against the accused were brought out in cross examination. The de facto complainant and the brother of the petitioner allegedly had at an earlier point of time, amorous relationship. PW1 alleges that one of her children was born out of the physical relationship with the brother of the petitioner who is the 2[nd] accused in the C.C. She alleges that while they were on good terms, she had given money to the 2[nd] accused by selling her ornaments. Subsequently, at the instance of the first and third accused, who are the brother and father of the 2[nd] accused, the 2[nd] accused married another lady. Thereafter, PW1 wanted the money back, which was the basis for the quarrel, which resulted in the assault on PW1. These facts have not been challenged in cross examination. On the other hand, some of those facts have been brought out in cross examination. PW1 had suffered serious injuries and in fact lost two teeth. She immediately went to the police station and the police directed her to go to the hospital. She had gone to the hospital and PW9, the doctor who treated her and PW2, the dentist who treated her thereafter, gave evidence in support of the prosecution case. The learned counsel for the petitioner wanted me to believe that the injury sustained by PW1 could not have Crl. R.P. No. 135 of 2003 -: 6 :- been resulted in the way she narrated the same, insofar as if the injury was on account of beating by the petitioner, necessarily, the lips of PW1 also would have been injured. Learned counsel pointed out that in the evidence of PW2, the dentist has stated that if the injury had occurred on account of the beating by a wooden rod, certainly the lips also would have been injured. I am not satisfied that as a general principle that would be true. As rightly held by the courts below, if the beating was straight on the teeth itself without touching the lips when the mouth was open, even without an injury to the lips the teeth could have been broken. As such, that alone cannot be a decisive factor to discard the evidence of PW1. As rightly pointed out by the learned Public Prosecutor, the evidence of PW1 is amply corroborated by the medical evidence available in this case. Therefore, I am not inclined to take a view that the appreciation of evidence by the courts below is demonstrably perverse. 6. I do not find any merit in the contention that Section 354 is not attracted in this case. The evidence is to the effect that the petitioner had torn off the night dress (popularly known as 'nighty' and is commonly worn by the women of the lower strata of society these days) which PW1 was wearing at the time of the incident, in public. Of course, going by the decision cited by the petitioner, the opinion of PW1 regarding outraging of modesty cannot be the decisive factor. As decided by the Supreme Court in Crl. R.P. No. 135 of 2003 -: 7 :- **Tarkeshwar Sadhu's case** (supra), modesty is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. There cannot be two views on the fact that if a woman is disrobed in public, that would amount to outraging her modesty as an attribute associated with female human beings as a class. Therefore, I do not find any merit in the second contention also. 7. The learned counsel for the petitioner pleads for mercy in the matter of sentence. I am not inclined to hold that the punishment imposed on the petitioner by the lower courts is excessive by any standard. But, taking a lenient view, I direct that the sentences shall run concurrently instead of separately. Subject to the above modification, this Criminal R.P. is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge. Crl. R.P. No. 135 of 2003 -: 8 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=Crl. R.P. No. 135 of 2003 = =-=-=-=-=-=-=-=-=-- O R D E R 30[th] October, 2012.