Kerala High Court: In an appeal filed by the appellants (‘accused persons’) under Section 374(2)1 of Criminal Procedure Code, 1973 (‘CrPC’) challenging the conviction entered and sentence passed against them for the offence punishable under Section 377 of Penal Code, 1860 (‘IPC’), C.S. Sudha, J., stated that the victim had agreed that he used to smoke, but not drink. Merely because the victim admitted that he used to smoke, would not be a ground to conclude that he was of a deviant character.
The Court stated that there was no reason to disbelieve the victim, who had clearly deposed regarding the over acts of the accused persons. It was highly improbable and unlikely for the victim to have fabricated such a false story against the accused persons, especially when he had no motive or reason(s) to do so. The Court stated that there was no reason to disbelieve the victim, and accordingly, dismissed the appeal.
Background
The prosecution case was that the two accused persons, in furtherance of their common intention to commit carnal intercourse against the order of nature, on a victim-boy aged 16 years in their car, forcibly made him drink alcohol, took him to a desolate place and had carnal intercourse against the order of nature. Hence, the accused persons were alleged to have committed the offences punishable under Sections 3632 and 377 read with Section 343 of IPC.
On a consideration of the oral and documentary evidence and after hearing both sides, the Trial Court acquitted the accused persons under Section 235(1)4 CrPC of the offence punishable under Section 363 of IPC. However, they were found guilty of the offence punishable under Section 377 of IPC.
The accused persons submitted that the evidence on record was totally unsatisfactory to establish the charge against the accused beyond reasonable doubt. To prove the offence under Section 377 of IPC, there was only the sole testimony of the victim boy, which was not of sterling quality. Hence, the Trial Court ought not to have convicted the accused based on his testimony. The testimony of the Head Constable would show that there was yet another person inside the car at the time of the alleged incident. However, the victim denied the same. Therefore, the testimony of the prosecution witnesses was inconsistent regarding the number of persons who were present inside the car at the time of the incident. In such circumstances, benefit of doubt ought to have been given to the accused persons.
Analysis, Law, and Decision
The Court noted the testimony of the witnesses, stated that it was true that the Head Constable, Malappuram police station, had a case that apart from the accused persons and the victim, there was yet another person inside the car on the date of the incident. However, the victim had denied the existence of such a person in the car.
The Court stated further, no explanation was given either by Head Constable or Investigating Officer as to why the said person was not included or arrayed as an accused or why he was excluded from the case. However, the Court stated that it was pertinent to note that the victim had no case that any person other than the accused persons had sexually abused him. The Court found no reason(s) to disbelieve the victim’s version regarding the same.
The Court noted the respondent’s argument, the victim was to somehow save his face as he had consumed alcohol on the said day and therefore it was difficult for him to face his parents. It was argued that the light of his deviant character, the victim’s testimony was not reliable or safe. The Court stated that the victim had agreed that he used to smoke but not drink. Merely because the victim admitted that he used to smoke, would not be a ground to conclude that he was of a deviant character. The Court stated that the youngsters were prone to commit mistakes/follies during their teens or young age for which they could not be branded as deviant and wholly unreliable.
Further, after perusal of the testimonies of the accused persons, the Court stated that there was no reason to disbelieve the victim, who had clearly deposed regarding the over acts of the accused. It was highly improbable and unlikely for the victim to have fabricated such a false story against the accused persons, especially when he had no motive or reason(s) to do so. No evidence or materials were also brought on record to show that the accused had any prior acquaintance with the victim and that due to some enmity, a false allegation was raised.
The Court further noted that respondents pointed that the medical evidence also did not support the prosecution case. Since, there were no injuries on the private parts of the victim by the doctor, who examined him, therefore this was another reason to doubt the prosecution case. The Court stated that as per the victim, the accused persons had abused him by thrusting his penis in between his thighs. Thus, that being the position, there could not be any injury on his private parts.
The Court stated that there was no reason to disbelieve the victim, and it found no infirmity in the impugned judgment calling for an interference, and accordingly, dismissed the appeal.
[Abdul Salam v. State of Kerala, 2025 SCC OnLine Ker 363, decided on 20-01-2025]
Advocates who appeared in this case :
For the Appellants: Babu S. Nair and K. Rakesh, ESM Kabeer, Advocates
For the Respondent: Vipin Narayan, Senior Public Prosecutor; Sheeba Thomas, Public Prosecutor
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1. Corresponding Section 415 of Bhartiya Nagarik Suraksha Sanhita, 2023
2. Corresponding Section 137(2) of Bhartiya Nyaya Sanhita, 2023 (‘BNS’)
