Smoking not ground to discredit victim's testimony: Kerala High Court upholds Section 377 conviction

The Kerala High Court recently upheld the conviction and three-year imprisonment of two men under Section 377 (unnatural offences) of the Indian Penal Code (IPC) for sexually abusing a 16-year-old boy. [Abdul Salam v State of Kerala and connected case].Justice CS Sudha, while dismissing the appeals, emphasised that a victim's testimony cannot be discredited merely on the ground that he smokes, asserting that such behaviour should not automatically lead to conclusions about their moral integrity."PW5 [the victim] 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. Youngsters are prone to commit mistakes during their teens or young age for which they cannot be branded as deviant and wholly unreliable," the judge added..The case arose from allegations that the two accused men had forcibly taken the 16-year-old boy (victim) to an isolated location, made him consume alcohol and committed unnatural sex with him.Based on the victim's complaint, a first information report (FIR) was registered against the two under Sections 363 (punishment for kidnapping) and 377 of the IPC read with Section 34 IPC.Trial proceedings were initiated and the sessions court acquitted the accused under Section 363 IPC. However, they were convicted under Section 377 IPC and sentenced to three years of rigorous imprisonment.Aggrieved by the trial court's conviction, the accused moved appeals before the High Court challenging the decision..The counsel for the accused argued that the evidence presented by the prosecution was insufficient to prove the charge under Section 377 IPC beyond reasonable doubt as the victim's testimony, being the sole piece of evidence, lacked the reliability required to convict the accused.Inconsistencies in the victim's statements, particularly about alcohol consumption on the day of the incident, were highlighted as grounds for doubting his account.It was submitted that the attempt of 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. In the light of his deviant character, his testimony is not reliable or safe, the accused argued.The prosecution, however, relied on the victim's testimony and corroborated the medical evidence to establish the charge, where the victim had testified that the accused forcibly took him to a grassy area, undressed him, and sexually assaulted him by thrusting their penises between his thighs.The prosecution stated that the medical evidence supported his account, with the doctor noting discolouration and pieces of grass on the victim's buttocks, consistent with the events described..The Court observed that the victim's testimony was consistent and credible, with no evidence of a motive to falsely implicate the accused and noted that it was unlikely for the victim to fabricate such a detailed account against individuals with whom he had no prior acquaintance or enmity."I find no reason(s) to disbelieve PW5 and hence I find no infirmity in the impugned judgment calling for an interference. In the result, the appeals sans merit are dismissed. Interlocutory applications, if any pending, shall stand closed," the Court added.The Court said that the victim himself had admitted that he smokes but does not consume alcohol. The Court said that the mere fact that a persons smokes cannot be held against him to conclude that he is of a deviant character.Therefore, the Court found no error in the trial court's judgment and upheld the conviction and dismissed the appeals..Advocates Babu S Nair, K Rakesh and ESM Kabeer appeared for the accused.Senior Public Prosecutor Vipin Narayanan and Public Prosecutor Sheeba Thomas represented the State..[Read Judgment]