Procedural lapses in recording victim statements do not invalidate prosecution if evidence sufficiently proves guilt beyond reasonable doubt.

ORDER :

(A. Badharudeen, J.)

The 1st accused in C.C.No.1556 of 2017 on the files of Judicial Magistrate of First Class-II, Kochi, has filed this Revision Petition under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the judgment in Crl.Appeal No.169/2020 on the files of Additional Sessions Court-VII, Ernakulam, whereby the Additional Sessions Court confirmed the conviction and sentence imposed by the Magistrate in the above case.

2. Heard the learned counsel for the revision petitioner/1st accused and the learned Public Prosecutor in detail. Perused the verdicts under challenge.

3. Prosecution allegation in this case is that at about 9.30 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 1st accused 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 2nd accused caught hold of the hand of the defacto complainant and when her husband intervened, the 3rd accused kicked him down and the 2nd accused 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 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 2nd convict, who laid his hands on the lady and hence he is sentenced to 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