Smoking Won’t Be Ground To Conclude That Victim Is Of Deviant Character: Kerala HC Upholds Section 377 IPC Conviction
The Kerala High Court dismissed Appeals of two accused persons allegedly having carnal intercourse with a 16-year-old boy.
The Kerala High Court while upholding a case under Section 377 of the Indian Penal Code (IPC), said that smoking is not a ground to conclude that the victim is of deviant character.
The Court was deciding Appeals preferred by the accused persons challenging the conviction and sentence passed against them.
A Single Bench of Justice C.S. Sudha observed, “It was submitted that the attempt of PW5 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. In the light of his deviant character, his testimony is not reliable or safe, goes the argument. PW5 admitted that he used to smoke but not drink. Merely because PW5 admitted that he used to smoke, would not be a ground to conclude that he is of a deviant character.”
The Bench added that youngsters are prone to commit mistakes/follies during their teens or young age for which they cannot be branded as deviant and wholly unreliable.
Advocates Babu S. Nair and ESM Kabeer represented the Appellants/Accused while Senior Public Prosecutor (SPP) Vipin Narayan and Public Prosecutor (PP) Sheeba Thomas represented the Respondent/State.
Factual Background
As per the prosecution case, the Appellants/accused persons (two in number) in furtherance of their common intention to commit carnal intercourse against the order of nature took the victim- a boy aged 16 years in their car and forcibly made him drink alcohol, took him to a desolate place and had carnal intercourse. Hence, they allegedly committed the offences punishable under Sections 363 and 377 of IPC read with Section 34 IPC.
Resultantly, an FIR was registered and the Judicial Magistrate committed the case to the Sessions Court. The Trial Court acquitted the accused persons under Section 363 IPC but found them guilty under Section 377 IPC and sentenced them to a rigorous imprisonment of 3 years along with a fine of Rs. 5,000/- each. Being aggrieved, the accused persons filed Appeals before the High Court.
Reasoning
The High Court in view of the facts and circumstances of the case, noted, “There is no reason to disbelieve PW5 who has clearly deposed regarding the overt acts of the accused. It is highly improbable and unlikely for PW5 to have fabricated such a false story against the accused persons especially when he has no motive or reason(s) to do so.”
The Court said that no evidence or materials have been brought on record to show that the accused had any prior acquaintance with the victim and that due to some enmity, a false allegation has been raised.
“PW1 the doctor has deposed that on examination he found discolouration on the buttocks of PW5 and pieces of grass on the buttocks area. This aspect substantiates the version of PW5 who deposed that the accused persons had taken him out of the car to a grassy area, undressed him and then the accused one by one had abused him by thrusting their penis between his thighs. This explains the discolouration on his buttocks and pieces of grass on the buttocks”, it further noted.
The Court, therefore, did not find any reason(s) to disbelieve the victim and also found no infirmity in the impugned Judgment calling for an interference.
Accordingly, the High Court dismissed the Appeals and upheld the conviction.
Cause Title- Abdul Salam v. The State of Kerala (Neutral Citation: 2025:KER:3727)
Appearance:
Appellants: Advocates Babu S. Nair, ESM Kabeer, and K. Rakesh.
Respondent: SPP Vipin Narayan and PP Sheeba Thomas.
