a.m on 02.08.2017 when the defacto complainant was travelling as a pillion rider on a motorcycle driven by her husband through Palluruthi- Thoppumpadi road and when they reached near Marampally temple at about 9.30 p.m, accused 1 to 3, who were standing on the road, after sharing common intention blocked the motorcycle and wrongfully restrained the movement of the defacto complainant and her husband by standing in front of the motorcycle and then they removed the ignition key of the motorcycle and restrained the further movement of the defacto complainant and her husband. Then the 1^staccused slapped on the face of the husband of the defacto complainant and accused 2 and 3 uttered obscene words against the defacto complainant and her husband. The further case of the prosecution is that in continuation of the common intention shared between the accused, the 2^ndaccused caught hold of the hand of the defacto complainant and when her husband intervened, the 3^rd accused kicked him down and the 2^ndaccused kicked out the defacto complainant and pressed on her breast with lustful intention to outrage her modesty. According to the prosecution, accused 1 to 3 committed offences punishable under Sections 323, 341, 354 and 294(b) r/w 34 of the

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Indian Penal Code,1860 (`IPC' for short). Recording the statement of the defacto complainant, crime was registered and final report also was filed alleging commission of the above offences. When the final report was filed before the trial court, the trial court took cognizance of the said offences and on complying the pre-trial formalities, proceeded with trial.

4. During trial, PWs 1 to 6 were examined and Exts.P1 to P3 were marked on the side of the prosecution. No defence evidence adduced though the accused were given opportunity to opt for the same after questioning them under Section 313 Cr.P.C by explaining the incriminating circumstances found in evidence against them.

5. On meticulous analysis of the evidence, the trial court found that accused 1 to 3 committed offences punishable under Sections 341 and 354 read with 34 of IPC and they are convicted for the same u/s.248(2) of the Code of Criminal Procedure (`Cr.P.C' for short hereafter). Accordingly, the trial court imposed sentence as under:

"The convicts above are sentenced to fine of Rs.500/- each for the offence u/s.341 IPC and if the fine amount is not paid, they will undergo simple imprisonment for a period of one month each as default sentence. As regards the offence u/s.354 IPC, it is the 2^nd convict, who laid his hands on the lady and hence he is sentenced to

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rigorous imprisonment for a period of two years together with fine of Rs.10,000/- for the offence u/s.354 IPC, and if the fine amount is not paid, he will undergo a further period of simple imprisonment for two months as default sentence. As regards, convicts 1 & 3, both are sentenced to simple imprisonment for a period of one year together with fine of Rs.10,000/- for the offence u/s.354 IPC, and if the fine amounts are not paid, they will undergo a further period of simple imprisonment for one month as default sentence."

6. Aggrieved by the conviction and sentence imposed by the trial court, the accused persons preferred two appeals, viz., Crl.Appeal Nos.165 of 2020 and 169 of 2020. As per common judgment dated 15.10.2024, the appellate court confirmed the conviction and sentence imposed by the trial court, on re-appreciation of evidence.

7. While assailing the concurrent verdicts of conviction and sentence imposed by the trial court as well as the appellate court, the learned counsel for the revision petitioner argued that, in this matter there was failure to record 164 statement of the defacto complainant, who was examined as PW1, though the same is mandatory in view of 2^ndproviso to Section 154(1)(c) of Cr.P.C. According to the learned counsel for the revision petitioner, non-recording of 164 statement of the victim is an absolute illegality committed by the investigating officer and the same

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would go to the root of the matter to hold that the accused persons are innocent. The second point argued by the learned counsel for the revision petitioner is that, if the entire prosecution case is taken as such, the same is the outcome of a scuffle and there is nothing to hold that the accused persons had done any overt acts to outrage the modesty of PW1 and there was no evidence to prove the ingredients for the offence under Section 354 of IPC. It is also pointed out that there is some discrepancy in the evidence of PW3 in the matter of time of occurrence and the same shall be adjudged in favour of the revision petition. Another contention is that in Ext.P2 scene mahazar there was street light available 20 metre away from the place of occurrence is unbelievable. Further commission of offence under Sections 341 and 354 of IPC would not be possible in a place where the vehicles are passing frequently, as per the prosecution allegation. Yet another contention raised is that there was no proper examination of the accused under Section 313 of Cr.P.C. On the above grounds, the learned counsel for the revision petitioner pressed for interference in the concurrent verdicts of conviction and sentence of the trial court as well as the appellate court.

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8. Adverting to the first contention raised by the learned counsel for the revision petitioner, the learned Public Prosecutor would submit that even though as per clause (c) to second proviso to Section 154(1) of Cr.P.C, the police officer shall get the statement of the victim involving an offence under Section 354 of IPC recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of Section 164 as soon as possible in view of the amendment came into force w.e.f 03.02.2013, non- recording of 164 statement would not give any benefit to the accused when the evidence adduced by the prosecution fully established the guilt otherwise. The learned Public Prosecutor pointed out that in paragraph 6 of the trial court judgment the trial court relied on the decision of the Apex Court in [AIR 2010 SC 2119], Abu Thakir v. State Of T.N., wherein it was held that criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. Thus the question arises for consideration is; whether non-recording of 164 statement of a person against whom offences under Sections 354, 354A, 354B, 354C, 354D, sub section (1) 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E and 509 of IPC is fatal to the prosecution? In this

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connection, it could be gathered that, in view of the amendment brought into force w.e.f 03.02.2013 to second proviso to Section 154(1)(c) of Cr.P.C, police officer shall get statement of the victim recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of Section 164 as soon as possible, when offences under Sections 354, 354A, 354B, 354C, 354D, sub section (1) or 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E and 509 of IPC are alleged to be committed against the victim. Since the word used in the proviso is "shall get statement of the person recorded by a Judicial Magistrate', compliance of the said provision is mandatory. While answering the question as to whether when there is failure on the part of the investigating officer in complying the mandatory statutory requirement as part of investigation, the same would throw the prosecution allegation in toto or the same would go to the root of the matter, where the evidence tendered by the prosecution otherwise established guilt of the accused, reference to precedents is necessary. In

Abu Thakir v. State Of T.N. (supra) as well as in the earlier decision of the Apex Court in [(1999) 8 SCC 715], State of Karnataka v. K.Yarappa Reddy, the Apex Court held that even if the

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investigation is illegal or even suspicious, the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. If the court is convinced that the testimony of a witness to the occurrence is true, the court is free to act on it albeit the Investigating Officer's suspicious role in the case.

9. Thus the law is well settled that omission to comply mandatory provisions of the procedural law or otherwise by the investigating officer by itself would not give a clean chit to the accused and would not throw out the case of the prosecution in toto, and the courts are duty bound to evaluate the evidence available to see independently whether the allegation as to commission of the offence/s at the instance of the prosecution is established beyond reasonable doubt. Once the court, on evaluation of available evidence could find that the prosecution established the guilt of the accused regardless of the omissions, which may

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be mandatory, eschewing the omissions, the court can enter into conviction. In such view of the matter, fault in the investigation including failure to record 164 statement of a victim, who involved in offences punishable under Sections 354, 354A, 354B, 354C, 354D, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E and 509 of IPC is not fatal to the prosecution in a case, where the evidence adduced is sufficient to prove guilt of the accused beyond reasonable doubt.

10. While addressing the challenge against concurrent verdicts, the question that arises is whether anything in the instant case to find that the verdicts are illegal or the same suffer from perversity to be addressed by this Court by exercising the power of revision.

11. In this matter, the trial court as well as the appellate court had given heavy reliance on the evidence of PW1, the defacto complainant and PW2, her husband to find that accused Nos.1 to 3 committed offences punishable under Sections 341, 354 r/w 34 of IPC. Evidence of PW1 discussed by the trial court and the appellate court is to the effect that PW1 had spoken in the box in chief examination about the date and time of the incident, and she had narrated the sequence of events, which is in tune with that of her Ext.P1 FIS. Going by her evidence in chief, when their

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bike reached in front of Marampally Temple, accused 1 to 3 were seen on the road side and the 1^staccused blocked the bike and he removed the ignition key after shouting abuses. As her husband removed the helmet, the 1^staccused attempted to slap him and she stepped down from the bike. Soon, the 2^ndaccused caught PW1 on her hand and twisted her hand and pulled her aside. As she managed to wriggle out, the 3^rdaccused was about to kick her husband and she stood in front of her husband and covered him. At that moment, the 2^ndaccused intentionally caught hold of her breasts with lustful intention, and that act outraged her modesty. The trial court as well as the appellate court concurrently found that no material contradictions brought out during cross examination of PW1 to discredit her version.

12. Turning to the evidence of PW2, he had spoken almost in tune with that of PW1 and no material contradictions brought out during his cross examination also as found by the trial court and the appellate court.

13. The trial court as well as the appellate court found that the evidence given by PW1 and PW2 are almost identical. The trial court

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addressed some minor contradictions which are not material, pointed out by the learned counsel for the accused regarding the evidence of PW1 and PW2. It was observed by the trial court that as per PW1's evidence, she had fallen due to the push of the 2^ndaccused. But the evidence of PW2 in that regard is different from that of PW1 and PW2 stated that the 2^nd accused caught hold of her hand. In fact, use of hand by the 2^ndaccused against PW1 is the inference to be drawn from the evidence of PW1 and PW2 and therefore the trial court as well as the appellate court found that those are no material contradictions to discredit the version of PW1 and PW2. Another contradiction regarding the place of occurrence is also addressed by the trial court on the point that at the time of occurrence, PW2 was sitting on the bike whereas PW2 stated that he had on the foot. Same also negatived by the trial court holding that minor contradictions, inconsistencies or embellishment of trivial nature could not be taken as a ground to reject prosecution evidence in its entirety. In this regard the trial court relied on 2 decisions of the Apex Court and observed as under:-

"This position is fortified by the judgment of the Apex Court in "Shyamal Ghosh v. State of West Bngal", reported in (AIR 2012 SC 3539). Further, it is also to be noted that the maxim,

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"falsus in uno falsus in omnibus" has no application in Indian circumstances, and it is the duty of the Court to separate the grain from the chaff. Doubt in this regard is settled by the Apex Court in

"Nisar Alli v. State of UP", reported in (AIR 1957 SC 366). Therefore, the defence contention in the matter can only be repelled, which I do."

14. Even though it is argued by the learned counsel for the petitioner that evidence of PW3 is contrary to the version of PW1 and PW2, in para.7 of the judgment, the trial court addressed the evidence of PW3 and found that it is not correct to say that evidence of PW3 is evasive. It was observed by the trial court that PW3 is not a victim or a close relative of the victim. So he would forget the exact date and time of the occurrence. However, evidence of PW3 did also generally support the version of PW1 and PW2 regarding the occurrence.

15. In the instant case, the evidence given by PW1 and PW2 regarding the occurrence would inspire confidence, where PW3 also supported the occurrence, but as regards the time of occurrence PW3's evidence is in deviation from PW1 and PW2. That by itself would not make the evidence of PW1 and PW2, the victims of the crime, unbelievable. If at all evidence of PW3 is eschewed, then also the

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prosecution case is proved beyond reasonable doubt.

16. On reading the verdicts impugned, it could be gathered that the trial court as well as the appellate court believed the evidence of PW1 and PW2 to hold that the 1^staccused wrongfully restrained them and the 2^ndaccused used criminal force against PW1 to outrage her modesty after sharing common intention between accused Nos.1 to 3 and thereby all the accused committed offences punishable under Sections 341, 354 r/w 34 of IPC. In fact, the evidence given by the victim in a crime which failed to be shaken during cross examination can be relied on to enter into conviction. The trial court as well as the appellate court rightly exercised the said option.

17. It could be noticed that before the trial court a contention was raised to the effect that with the aid of Section 34 of the IPC, the 1 ^st accused could not be made liable for the offence punishable under Section 354 of IPC relying on the decision of the Apex Court reported in [2010

(10) SCC 281], Abdul Syeed v. State of Madhya Pradesh, where the Apex Court in paragraph 19 with reference to the evidence given by PW1 and PW2 therein found that there cannot be any direct evidence regarding

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common intention by the accused and it is a matter proved by circumstances. Here in paragraph 19, the appellate court observed that, according to PW1, while she was travelling as a pillion on a motor cycle rode by her husband, all the accused blocked the vehicle in front of Marampally temple. The 1^staccused took away the key so that they became unable to proceed further. PW2 also gave evidence regarding the same Regarding the common intention, it was also observed by the trial court that accused 1 and 3 herein are not mere spectators present at the spot and the motorcycle where PW1 and PW2 were travelling was blocked by all of them and the 1^staccused removed ignition key and restrained the further movement of PW1 and PW2. Thereafter accused 1 to 3 did different acts and the 2^ndaccused caught hold on the breast of PW1 after sharing common intention between accused Nos.1 to 3 and they blocked and assaulted PW1 and PW2. In fact, in such a case, it could not he held that the principle of joint liability embodied under Section 34 of IPC is not made out to hold that apart from the 2^ndaccused, the other accused, who shared common intention, should not be punished for the offence punishable under Sections 341, 354 with the aid of 34 of IPC.

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18. As regards to the challenge with respect to the availability of light at the spot also, the trial court and the appellate court rightly found availability of light on evaluation of evidence and the said finding doesn't require any interference by exercising the limited power of revision by re-appreciating the evidence. Similarly as far as the illegality pointed out by the learned counsel for the revision petitioner regarding non examination of the victim under Section 313 of Cr.P.C, in fact, such a contention cannot succeed since it was not raised before the trial court or before the first appellate court. That apart, the judgment would show that such a procedure was rightly opted. Therefore, this challenge also would fail. Thus the conviction and sentence imposed by the trial court as well as the appellate would require no interference.

19. Coming to sentence imposed, the same in relation to the revision petitioner is the statutory minimum. Thus no interference is possible in the sentence also. Accordingly, the sentence also is confirmed.

20. In the result, this Revision Petition stands dismissed. Registry shall forward a copy of this order to the jurisdictional

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court for information and further steps. Sd/-

A. BADHARUDEEN, JUDGE

rtr/

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