IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
CRL.A NO. 395 OF 2006
AGAINST THE JUDGMENT DATED 16.02.2005 IN S.C.NO.405/2004
OF THE DISTRICT COURT & SESSIONS COURT,THODUPUZHA
(CP 16/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,
KATTAPPANA
APPELLANT/ACCUSED:
RAJU @ POTTAR,
THEKKILATHIYIL HOUSE, THANKAMANI VILLAGE,
PANDIPARAKARA.
BY ADVS.
SRI.M.G.KARTHIKEYAN
SRI.NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
SMT MAYA M.N - PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 17.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
Crl.Appeal No.395 of 2006
JUDGMENT
This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. The 1st accused in S.C.No.405 of 2004 before the Sessions Court, Thodupuzha was convicted for offences punishable under Sections 376 and 450 of the Indian Penal Code, 1860 and Section 3(1)(XI) and 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "SC/ST Act"). He was sentenced to undergo rigorous imprisonment for a period of seven years and a fine of Rs.10,000/- under Section 376 of the I.P.C. and rigorous imprisonment for one year for offence under Section 450 of the I.P.C. No separate sentence was awarded for offences under the SC/ST Act. In default of payment of fine, the accused was sentenced to undergo simple imprisonment for a further period of two years. The fine amount, if any collected, was directed to be paid to PW1 as compensation.
2. The appellant assails the judgment of conviction and order of sentence on the grounds that there has not been 3 Crl.Appeal No.395 of 2006 any evidence to prove the incident, but the Sessions Court acting upon the First Information Statement and medical evidence entered into the finding that the appellant had committed the offences, with which he was charged. The appellant also raised a contention that the medical evidence tendered through PW5 and Ext.P8 does not satisfy the requirements Section 164A of Cr.P.C. and that crucial aspect was ignored by the learned Sessions Judge.
3. The learned Public Prosecutor, on the other hand, would submit that PW1, the prosecutrix was alone there to depose regarding the incident and considering her rustic nature and also the mental infirmity of mild nature she was suffering from, her evidence has to be believed. The learned Public Prosecutor further would submit that the versions in Ext.P1 First Information Statement are in consonance with what has been stated by PW1 before the court in material particulars. It is also submitted that the medical evidence supports that evidence. Accordingly, the learned Public Prosecutor would contend that the findings entered into by 4 Crl.Appeal No.395 of 2006 the Sessions Court are correct, and there is no reason to interfere with the same.
4. The essential allegations of the prosecution are that at 12.30 p.m. on 16.07.2001, the appellant along with one Jolly, who was arraigned as the 2nd accused, criminally trespassed into the residence of PW1, where she along with her parents and siblings are residing, which bears door No.V/266 of Kamakshi Panchayat. Inside the building, PW1 was ravished by the appellant as well as the other accused. She belongs to a Scheduled Caste community and the said acts were committed by the accused knowing that fact and therefore an offence under the SC/ST Act was also committed.
5. Before the Sessions Court, PWs.1 to 9 were examined and Exts.P1 to P23 were marked. MOs.1 to 3 were identified as well. After examination of the appellant under Section 313(1)
(b) of the Cr.P.C., the appellant was given an opportunity to adduce evidence. But no evidence was let in. The Sessions Court, after hearing both sides, found the appellant guilty. The 2nd accused could not be charged since he was absconding. 5 Crl.Appeal No.395 of 2006
6. PW1, the prosecutrix deposed in court that a person entered her house while she alone was inside the house and abused her sexually. She did not state on which date the incident occurred, but she stated that on 17.07.2001, which was the next day of the incident, she went to Kattappana Police Station and lodged the F.I.S. regarding the incident, which was marked as Ext.P1. During the examination, she deposed that the accused was the person who assaulted her sexually and alleging the same fact she gave statement on the next day before the police. She, however, explained that it was Jolly, the 2 nd accused, who really had ravished her and as instructed by him, she had given a statement in police implicating the 'accused', the appellant herein. In the later part of the examination, she stated that the accused was not the person, who did the sexual assault on her. That had led to declaring her hostile to the prosecution case and allowing the Public Prosecutor to put questions that might be put in the cross-examination. She was thus cross-examined. Even by a detailed cross- 6 Crl.Appeal No.395 of 2006 examination, the learned public prosecutor could not elicit any worthwhile evidence so as to implicate the appellant as the person who committed the act of sexual assault on her. An anxious reading of her deposition will give an impression that she does not say that it was the appellant, who committed the alleged act of sexual invasion on her.
7. PW2 is her mother. She was not at the house at the time of the alleged incident. When she came in the evening, PW1 told her about the incident. The next day, they went to the Police Station to lodge the complaint. PW2, it appears, is the person to whom PW1 told about the incident at the first point of time. Of course, she had only hearsay information. Her evidence, if she had deposed in court in proof of the incident, would be relevant under Section 6 of the Evidence Act, 1872. But she did not state anything regarding the role of the appellant in the case. What she stated in court is that the accused did not commit the offence as alleged by the prosecution. Thus, the evidence of PW2 is also not available to implicate the accused in any way in the alleged crime. 7 Crl.Appeal No.395 of 2006
8. Besides PW1 and PW2, there is no witness to depose regarding the incident. The other witnesses have proved the attending circumstances. However, the learned Sessions Judge relying on the statement in Ext.P1 First Information Statement and the medical evidence entered into a finding that the charge of rape levelled against the appellant was proved. Consequently, the accused was found guilty. The reasons for rendering the said finding given by the learned Sessions Judge are as follows:-
"17. In the box PW1 deposed that the accused was not known to her and that he had not committed rape on her. But when he was confronted with Ext.P1 and in answer to the leading questions put in by the learned Public Prosecutor she had admitted that the accused did what was unwanted and that she had given Ext.P1 statement before the police against the accused knowing that the allegations levelled therein, namely rape is a very serious offence and that on the basis of the statements so given police would take case against the accused and that the matter was settled between the accused and hence she had denied of having the accused committed rape on her and that she did not want to have the accused convicted. The evidence of 8 Crl.Appeal No.395 of 2006 PW5 as I mentioned earlier would show that PW1 was subjected to sexual intercourse and her hymen was torn. When it was asked by the learned Public Prosecutor as to whether she was committed rape by any person or whether she had any voluntary sexual intercourse with any person she denied. The evidence of PW5 would show that denial is falsehood. In Ext.P8 also it was recorded as stated by PW1 that PW1 was subjected to rape. It was further noted that PW5 had suspected that PW1 suffered mild mental retardation. In cross examination PW5 had affirmed the same. As I mentioned earlier PW1 belongs to Scheduled Caste. From the evidence though it didn't appear that she is mentally ill. She lacks intellect and good reasoning. It appears that she was easily won over by the accused and had made to depose that she was not committed rape by the accused. It is pertinent to note that the accused had no case that he had voluntary sexual intercourse with PW1. But his contention is that the case was falsely foisted at the instance of one Jolly. No material was brought out to show that in fact Jolly had got any axe to grind against the accused or that PW1 was a puppet in the hands of Jolly. So the defense contention that the case was falsely foisted against the accused at the instance of Jolly did not appear to be correct. On the other hand PW1 was raped by the accused and accordingly she voluntarily gave Ext.P1.9
Crl.Appeal No.395 of 2006 Now she denies as she was won over by the accused. Her social backwardness and lack of intellect and reasoning were exploited to settle a case of this nature. Reliance had to be given to Ext.P1 which is admitted by PW1 and to be concluded that PW1 was subjected to rape by the accused. Denial of PW1 in the box is a falsehood. As the accused could somehow or other settle the case exploiting her backwardness, both social and mental and PW1 was persuaded to give false evidence because of that settlement, I find that no action be taken against her for giving false evidence."
9. The learned counsel appearing for the appellant would contend that on account of refraction from the procedural safeguards provided for the medical examination of a victim of rape, Ext.P8 cannot be acted upon. Likewise the chemical examiner's report, Ext.P22 does not contain a report for matching the samples with specimens obtained from the appellant, and therefore, that also is not available to help the prosecution. Provisions of Section 164A of the Code cannot have application in this case since that provision has come into effect only on 23.06.2006. However, the Doctor while examining the prosecutrix is expected to meticulously 10 Crl.Appeal No.395 of 2006 ascertain the facts relevant to arrive at his conclusions and to give the same in his certificate. PW5, the Doctor, who examined PW1 and issued Ext.P8 deposed in court regarding the facts he noticed during his examination. All such observations as stated in Ext.P8 are the basis for his opinion that there was evidence for sexual intercourse. He was not cross-examined with reference to any of the findings and observations in Ext.P8. In the said circumstances, the opinion given by PW5, who is an expert on the subject, cannot be discarded on the ground that he did not state the reasons for arriving at his findings in great detail. The opinion of the expert in the certificate is the inference arrived at on the basis of his observations and the obvious findings arose thereon.
10. The report in Ext.P3 is to the effect that human sperm and spermatozoa were found in item No.4, which is a petticoat, stated to be of PW1. When that is the report of the chemical analyst, absence of possible matching of the sample of specimen which could have been collected from the appellant, cannot have the effect of discarding the report 11 Crl.Appeal No.395 of 2006 altogether. That lapse on the side of the prosecution does not have the effect of discarding the whole case of the prosecution or impeding the Court from placing reliance on the report, if otherwise found reliable.
11. The statements in the First Information Statement, which is recorded under Section 154 of the Code, is a previous statement once its author is examined in court. What has been deposed by PW1 in court is substantive evidence and the use of her First Information Statement, Ext.P1, is to corroborate her oral evidence in court as provided under Section 157 of the Evidence Act. Therefore the relevance of such a previous statement comes only when oral evidence regarding the facts stated therein come in. In that context, the dominant question is, how far the oral testimony of PW1 can be acted upon.
12. As pointed out above, PW1 did not state definitely that it was the appellant, who committed rape or sexually assaulted on her. When she deposes before the court that as instructed by and out of fear of Jolly, she gave a complaint to 12 Crl.Appeal No.395 of 2006 the police implicating Raju (the appellant herein), it is quite difficult for giving credence to her version in court. Once she deposed that it was the accused, who sexually assaulted her. In the next breath, she stated that she stated so as instructed by Jolly. That nature of her evidence cannot inspire confidence of the court for a moment, and therefore, she is not a credible witness.
13. Of course, PW1 being a victim of sexual offence, her version has to be treated on a higher footing than that of an ordinary witness. In State of Punjab v. Gurmit Singh and Others [(1996) 2 SCC 384], the Apex Court held that in cases involving sexual molestation, even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are of a fatal nature, be allowed to throw out an otherwise reliable prosecution case. The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to 13 Crl.Appeal No.395 of 2006 insist upon corroboration of her statement to base conviction of an accused. It was further held that Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
14. The Apex Court in State of Himachal Pradesh v. Asha Ram [AIR 2006 SC 381] held thus:
"5. xx xx It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. xx xx Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."
15. That does not however mean that the evidence of a prosecutrix, if on its face itself is a wholly unreliable witness, cannot be acted upon. In the circumstances of this case, if the evidence of PW1 is not acted upon, any amount of evidence that came on record as medical evidence, chemical examiner's report, first information statement or other attending 14 Crl.Appeal No.395 of 2006 circumstances, do not help the prosecution to prove the charge. If the evidence of PW1 is found unbelievable, there remains absolutely no evidence to implicate the appellant in the crime. The evidence of PW1 cannot be relied on for the reasons stated above to reach a finding that the appellant trespassed into her house and committed any kind of sexual assault on her. The inevitable finding shall be that the prosecution failed to prove the charges levelled against the appellant.
16. Therefore, I hold that the finding entered into by the learned Sessions Judge that the appellant has committed the offences as charged, is liable to be reversed. Accordingly, I allow this appeal and the judgment dated 16.02.2005 in S.C.No.405 of 2004 of the Sessions Court, Thodupuzha convicting and sentencing the appellant is set aside. The appellant is acquitted and set at liberty.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr