SHAKIR vs STATE OF KRALA

The revision petitioner herein challenges the conviction and sentence against him under Sections 448 and 354 of the Indian Penal Code in S.T.

No. 538 of 1999 of the Additional Chief Judicial Magistrate''s Court, Ernakulam. He and the defacto complainant are next door neighbours. He

faced prosecution in the court below on the allegation that at about 2.30 a.m. on 23.06.1998, he trespassed into the house of the defacto

complainant while she, her husband and children were sleeping at the bedroom, and he outraged her modesty by catching her hand while she was

asleep. She made a hue and cry, the husband woke up immediately, the neighbours also gathered there, somebody informed the Police

immediately, and the petitioner was taken into custody by the Sub Inspector. On the same day, at about 7.15 a.m., on the way back from the

hospital, the defacto complainant made a complaint before the Police alleging house trespass and outrage of modesty. The Police registered the

crime on the said complaint, and after investigation, submitted final report in court.

The accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against him. The prosecution examined 9

witnesses (shown only 8 in the judgment), and proved Exts.P1 to P3 documents in the trial court.

The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., and he projected a defence that when he went

to the house of the complainant to hire her husband''s auto rickshaw for taking his aged mother to hospital at that time, he was unnecessarily

assaulted by the complainant and her husband, and he had also sustained severe injuries in the incident. In defence, the accused examined a

witness as DW1.

On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment

for 3 months each under Sections 448 and 354 IPC.

Aggrieved by the judgment of conviction dated 28.10.2003, the accused approached the Court of Session, Ernakulam, with Crl.A.No. 1065 of

2003. In appeal, the learned VI Additional Sessions Judge, Ernakulam, confirmed the conviction and sentence, and accordingly, dismissed the

appeal. The accused has come up in revision before this Court, challenging the legality and propriety of the conviction and sentence.

On hearing both sides, and on a perusal of the entire materials, I find something suspicious in the prosecution case. PW1 is the defacto

complainant, and PW2 is her husband. Their evidence is that while they were asleep, PW1 felt somebody catching her hand at about 2.30 a.m..

The incident was on 23.06.1998. When she made hue and cry, PW2 also woke up, and when he lighted the torch, he saw the accused at the

bedroom. Hearing the hue and cry, the neighbours came there. They caught the accused and informed the police. Immediately, the Sub Inspector

came there, and took the accused in to custody. They and the accused were taken to the hospital by the Police, and at about 7.15 a.m. on the

same day, on the way back from the hospital, the defacto complainant made a complaint.

PW4 and PW5 are the neighbours of the defacto complainant. Of them, PW5 did not support the prosecution. The evidence of PW4 is that

when he reached the house of PW1 on hearing the hue and cry, he saw the accused there, but he had not seen the accused doing anything there.

When he stated so, he was also declared hostile by the learned Assistant Public Prosecutor.

Thus, practically, there is only the evidence of PW1 and PW2 to prove the prosecution case. PW1 and PW2 stated that they had sustained

injuries in the incident, and they were taken to the hospital along with the accused by the Sub Inspector. They were treated only as out-patients,

and they left the hospital in the morning itself. The Ext.P1 complaint was given on the way from the hospital. Both these witnesses admitted that the

accused had sustained injuries in the incident, and he was admitted in the hospital. Evidence shows that the accused had sustained some severe

injuries. It is true that he has not produced the wound certificate. However, the witnesses have admitted the fact that the accused had sustained

some severe injuries in the alleged incident, and so he had to undergo treatment at the hospital as an in-patient. There is nothing to show that PW1

or PW2 had sustained any injury in the alleged incident. Though they say so, there is no material or medical evidence to prove it. PW9 was

examined by the prosecution after the examination of the Investigating Officer, but he stated that he cannot give any evidence without seeing the

wound certificate, or other medical documents. There is nothing in the evidence of PW9 in favour of the prosecution. Practically, there is no sort of

material to show that PW1 or PW2 had sustained any injury in the alleged incident as they would claim.

The alleged incident happened at about 2.30 a.m. It has come out in evidence that PW1 and PW2 had closed the door while going to sleep. It

is not known how the accused gained entry into the house. Nobody has got a case that the front door or the rear door was seen damaged or

broken, and nobody explains how the accused gained entry into the house. This particular aspect creates some doubt regarding the truth of the

prosecution case revealed by PW1. PW2 says that his daughter was also assaulted by the accused. But PW1 has no such specific case. The said

daughter is not seen examined as a witness.

All the witnesses including the Sub Inspector examined as PW6 are consistent that the accused was taken into custody at the house of PW1

and PW2 immediately after the incident. The Sub Inspector reached there on getting information from somebody, and he saw the three including

the accused with injuries. Immediately, the accused was taken into custody, and he, along with PW1 and PW2, was taken to the hospital. The

accused was admitted as inpatient at the hospital, as stated by PW1 and PW2 in evidence. The Ext.P1 complaint was made at 7.15 a.m. This

means that the accused was in fact at the hospital when the FIR was registered. PW8 is the Assistant Sub Inspector who registered the FIR, and

investigated the case. His evidence is that the accused could not be arrested during investigation. This is also really doubtful as to why the accused

could not be arrested when he was actually at the hospital for some days due to the injury sustained in the incident.

On an overall appreciation of the entire evidence, I find that there is something suspicious in the evidence given by the defacto complainant and

her husband. In fact, PW1 has not stated in clear terms that she was outraged by the accused. What she stated is that during sleep, she felt

somebody touching her hand. It is not known whether it was dream or not. PW2 has admitted that the accused was immediately caught there by

him and others, and he was dealt with on the spot. That is how he sustained severe injuries. PW1 has admitted that there is a case against her and

her husband on the complaint made by the accused. There is reason to believe that the present complaint was made by PW1 at the instance of her

husband or somebody else to counter the case registered against them on the complaint of the accused. Thus, I find that there are some suspicious

circumstances surrounding the whole prosecution case. The prosecution version that the accused trespassed into the house to outrage the modesty

of PW1 cannot be accepted when nobody says and explains how he gained entry into the house. It is suspicious who opened the door for him, or

how he could enter the house and come to the bedroom without the knowledge of any of the inmates, if the door; front or rear, was not damaged

or broken. It is here, the whole prosecution case becomes doubtful. The benefit of this doubt must go to the accused. For a conviction, there must

be clear and satisfactory evidence proving the case beyond reasonable doubts.

In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offences under Sections 448 and 354 of IPC, and

accordingly, he is acquitted of the said offences in revision. The conviction and sentence against the revision petitioner in S.T. No.538 of 1999 of

the trial court, confirmed in appeal by the Court of Session, Ernakulam, in Crl.A.No. 1065 of 2003, will stand set aside.