HONOURABLE JUSTICE G.SRI DEVI
CRIMINAL APPEAL No.2965 of 2018
JUDGMENT:
This appeal is filed under Section 374 (2) of Cr.P.C. against the conviction and sentence imposed against the appellant/accused in S.C.No.27 of 2016 on the file of the I-Additional Sessions Judge, Karimnagar. The appellant/accused was tried for the offences punishable under Section 376 (2) (I) of I.P.C. and Section 6 of the Protection of Children from Sexual Offences Act. The trial Court found the accused guilty of the said offences and since the punishment envisaged in both the offences is one and the same, the trial Court sentenced the appellant/accused to suffer rigorous imprisonment for a period of Ten years and to pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for six months.
In brief, the case of the prosecution is that on 04.08.2015 at about 10.00 A.M., P.W.1 lodged a complaint stating that on 03.08.2015 she went to coolie work by keeping her husband in their house to take care of their younger daughter, Bukkala Komalatha, (hereinafter referred to as "the victim"), who is deaf and dumb and also mentally challenged, and when she returned home at 6.30 P.M., she found the victim was sitting in front of the house of one Buchi Mallamma, who is her neighbour. P.W.1 went inside their house, attended routine works and went outside the house at about 7.00 2 GSD, J Crla_2965_2018 P.M., and when she tried to see her daughter, she did not find in front of the house of the said Buchi Mallamma and she found the victim was coming out from the house of the accused without blouse and also noticed the injuries on the chest and backside of her body and also hayrick pieces on her tuft. P.W.1 came to know through signs that taking advantage of mental and physical disability of the victim, the accused had committed sexual assault on the victim in the hayrick yard. Basing on the said complaint (Ex.P1), P.W.13-S.I. of Police, registered a case in Crime No.85 of 2015 for the offences punishable under Section 376 (2) (L) of I.P.C. and Section 6 of the Protection of Children from Sexual Offences Act and issued Ex.P10- First Information Report. On receipt of the F.I.R., P.W.14-C.I. of Police, visited the scene of offence, examined and recorded the statement of P.W.1. Thereafter, he observed the scene of offence in the presence of P.W.5 and one P.Rajesham, prepared Ex.P2-Crime Details Form and also drawn the rough sketch. Thereafter, he referred the victim to Government Hospital, Karimnagar, for medical examination. P.W.14 also gave a requisition to the Principal, Deaf and Dumb School, Karimnagar, to depute one female Teacher to assist the Investigating Officer in recording the statement of the victim and thereafter P.W.14 examined the victim girl with the help of P.W.2 and P.W.8, but he could not record the statement as the victim was not in a position to understand the signs given by P.W.2. P.W.14 also obtained date of birth certificate and Ex.P13- bonafide certificate of the victim from the concerned Schools. Later, 3 GSD, J Crla_2965_2018 he addressed a letter to the Superintendent, Government Head Quarters Hospital, Karimnagar, to examine the victim with a Psychiatrist doctor and thereafter P.W.12 examined the victim and found that she is suffering from severe mental retardation and that the disability is 90%. On 10.08.2015, P.W.14 apprehended the accused at his house and recorded the confessional statement of the accused in the presence of P.Ws.6 and 7. Ex.P3 is the confession- cum-recovery panchanama. Subsequently, P.W.11 examined the accused and issued Ex.P8 Potency Test Certificate. He got recorded the 164 Cr.P.C. statement of P.W.1. After obtaining all the material papers and after completion of investigation, he filed charge sheet before the Court of Judicial Magistrate of First Class, Sulthanabad, who in turn committed the case to the Court of Sessions Division. On committal, the same came to be numbered as S.C.No.27 of 2016.
On appearance of the accused, charges under Sections 376 (2) (I) of I.P.C. and Section 6 of the Protection of Children from Sexual Offences Act were framed against the accused, read over and explained to him, to which he pleaded not guilty and claimed to be tried.
In order to prove its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P1 to P15 and M.Os.1 and 2. After closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which 4 GSD, J Crla_2965_2018 he denied. Neither oral nor documentary evidence was adduced on behalf of the accused.
On appraisal of the evidence both oral and documentary, the learned trial Judge has convicted the accused for the aforesaid offences and sentenced him as stated supra. Aggrieved by the said conviction and sentence, the appellant/accused preferred the present appeal.
Learned Counsel for the appellant mainly contended that the impugned judgment is contrary to the evidence and material placed on record by the prosecution. The entire case of the prosecution is based on circumstantial evidence i.e., Ex.P4-Medical Certificate, the evidence of PW.9-Doctor, P.Ws.6 and 7, who are panch witnesses for confession and recovery panchanama of the accused. He further submits that the statement of the victim was not recorded since she was not responded to the signs of P.W.2. P.W.1, who is the mother of the victim also did not state that the victim informed through signs that the accused committed the alleged offence. P.W.3, who is the sister of the victim, stated that they were under the impression that the accused might have committed offence. He further submits that P.W.9-the doctor, who examined the victim, has made substantial material improvement in her evidence by stating that on item Nos.1 to 6 sperm and spermatozoa are detected and the offence was occurred. He also submits that it will not be safe to act upon the evidence of P.W.9 and her final opinion-Ex.P6 as in Ex.P6, she 5 GSD, J Crla_2965_2018 clearly mentioned that hymen was not intact and vagina admitting two fingers without pain, but in Ex.P6-final report, she mentioned that vagina admitting two fingers with pain and hymen ruptured, which clearly shows that she has given false certificate and as such her evidence and final opinion-Ex.P6 have to be excluded from consideration and in the absence of convincing medical evidence, the appellant would be entitled for acquittal. He further submits that Ex.P3-the confessional statement of the accused was inadmissible in spite of the mandate contained in Section 27 of the Evidence Act since the confessional statement made by the accused is not supported by relevant circumstances as well as the chain of events suggesting the involvement of the accused. He also submits that it is very difficult to believe the evidence of P.Ws.6 and 7 and recovery of M.Os.1 and 2 since P.W.14, even before the arrest of the accused, informed to P.Ws.6 and 7 through the M.R.O., to attend the house of the accused. He further submits that the reasons assigned by the trial Judge are contrary to the legal propositions made in catena of decisions and prayed to allow the appeal. In support of his contentions, he relied upon the judgment of the Apex Court in Madhu v. State of Kerala1 and also the judgment of the Karnataka High Court (Dharwad Bench) in Balaji v. State of Karnataka2. 1 (20120) 2 SCC 399 2 Crl.Appeal No.100098 of 2015, dt. 02.06.2020 6 GSD, J Crla_2965_2018 On the other hand, the learned Assistant Public Prosecutor appearing for the respondent submitted that there is sufficient material to show that the appellant was accountable for the commission of offences and, therefore, the conviction and sentence passed by the trial Court is justified and no interference is called for from this Court.
As seen from the material available on record, P.W.1 is the mother and P.W.3 is the sister of the victim girl. P.W.2 is the teacher for deaf and dumb, P.W.4 is the neighbour of P.W.1. P.W.5 is the panch witness for scene of offence panchanama. P.Ws.6 and 7 are the panch witnesses for confession-cum-recovery panchanama, P.W.8 is the woman head constable. P.W.9 is the Medical Officer, who examined the victim. P.W.10 is the Psychiatrist, who examined the victim with regard to her mental condition. P.W.11 is the Civil Assistant Surgeon, who examined the accused and issued Ex.P8- Potency Certificate. P.W.12 is the doctor, who issued Ex.P9- Disability Certificate. P.W.13 is the Sub Inspector of Police, who issued the F.I.R. and P.W.14 is the Investigating Officer.
P.W.1, who is the mother of the victim girl and who gave Ex.P1 complaint to the police, deposed that on the date of incident, she went to coolie work by keeping her husband at home to guard the victim, who is mentally retarded and deaf and dumb and when she returned home at 6.00 P.M., she found her daughter at the house of one B.Mallamma; that at about 7.00 P.M. she went to the house of 7 GSD, J Crla_2965_2018 the said Mallamma to bring her daughter to home, but she did not find her and while she was searching for her, she noticed that her daughter was coming from the backside of the house of the accused without blouse and also observed scratch injuries on the backside of her chest and hayrick pieces on her tuft and that she informed to the said Mallamma that the accused committed sexual assault on her daughter. P.W.1 further stated that she gave statement before the Judicial Magistrate of First Class, Peddapalli and that her daughter is not in a position to state anything against her because of her mental condition. In the cross-examination, P.W.1 denied the suggestion that after having consultations and deliberations, she gave report against the accused to the police on the next day of incident.
P.W.2, who is working as a Post Graduate Teacher for deaf and dumb, deposed in her evidence that, on 05.08.2015, on the instructions made by the Sub Inspector of Police, she went to the house of the victim and tried to talk to her by way of signs, but the victim has not responded to her questions and she did not give any rational answers and as such the statement of the victim was not recorded.
P.W.3, who is the elder sister of the victim, deposed that on the date of incident, her mother (P.W.1) went on coolie work and herself and her father present at home and that her sister (victim) sat at the house of one Buchi Mallamma; that at about 7.00 P.M. her 8 GSD, J Crla_2965_2018 mother went to the house of the said Mallamma, but she did not find the victim and that her mother returned to the house and informed the same to them. She further stated that the victim returned to home through the house lane of the accused without blouse and that they noticed injuries on her back, split marks on her breast and hayrick pieces on her tuft. She further stated that on seeing the victim, they were under the impression that the accused might have committed rape on her and that the victim did not state anything about the sexual assault.
P.W.4, who is the neighbour of P.W.1, deposed that on the date of incident, herself and her husband went to the house of P.W.1 and noticed that the victim has no blouse on her person and found injuries on her back, split marks on her chest and hayrick on her tuft. She further stated that she does not know anything about the accused and she was not examined by the police. P.W.4 declared hostile by the learned Assistant Public Prosecutor.
P.W.5, who is a mediator to the Crime Detail Form, deposed that the police informed that rape has taken place at the hayrick yard that he along with one Rajesham signed on Ex.P2 Crime Detail Form.
P.Ws.6 and 7, who are Village Revenue Officer and Panchayat Secretary and panch witnesses for confession-cum-recovery panchanama, deposed that, on 10.08.2015 at about 4.30 P.M., on the 9 GSD, J Crla_2965_2018 instructions of the Mandal Revenue Officer, they went to the house of the victim, where they found the accused in the custody of police and on being questioned, the accused voluntarily confessed that on 03.08.2015 at about 6.30 P.M. taking advantage of loneliness of the victim, who is mentally challenged woman, he took her to hayrick yard and committed rape on her and took away the drawer and blouse of the victim and kept in his house and that the accused went inside his house and produced the cut drawer and blouse of the victim and the police seized the same under Ex.P3-Panchanama and that they signed on the said panchanama.
P.W.8, the then Woman Head Constable, deposed that on 06.08.2015 on the instructions of Inspector of Police, she went to the house of the victim along with P.W.2 to record the statement of the victim. P.W.2 questioned the victim by way of signs, but there is no reply from the victim and as such she could not record the statement of the victim.
As stated above, for establishing the guilt of the accused, in all, the prosecution examined fourteen witnesses. The learned trial Court found the statements of the witnesses to be inspiring in confidence beyond a shadow of reasonable doubt and there is nothing on record to disbelieve the version of the prosecution witnesses. The learned trial Court relied upon the testimonies of the mother and sister of the victim girl, P.W.9-Doctor and the testimonies of the seizure-cum-panchanama (disclosure statement) 10 GSD, J Crla_2965_2018 and the Investigating Officer. Particularly, the learned trial Court took benefit from the admission made by the accused in his confessional statement dated 10.08.2015 (Ex.P3) alleged to have been recorded by P.W.14, in the presence of P.Ws.6 and 7, to the effect that he has committed sexual assault on the victim girl.
A perusal of the entire evidence available on record and on re-appraisal of the same, to my mind, the learned trial Court has in a perfunctory manner referred to the evidence of the prosecution witnesses without giving any cogent reasons, much less legally sustainable reasons in arriving at conclusions, holding the accused guilty of the charged offences. The learned trial Court did not discuss the issue of non-examination of the material witness i.e., the father of the victim girl to whom P.W.1 has disclosed about the commission of crime by the accused at the first instance; non- examination of the constable who recorded the confessional statement of the accused; non-identification of the material object i.e., the blouse of the victim girl during the alleged recovery by P.W.14 from the house of the accused before arrest of the accused and non-mentioning of the colour of the blouse by P.W.1 in the so called written complaint. A perusal of the entire judgment, it appears that the learned trial Judge has erroneously came to the conclusion that the prosecution has established its case beyond all reasonable doubt. The learned trial Judge also appears to have not 11 GSD, J Crla_2965_2018 carefully considered the statutory provisions making the confessional statement admissible.
In the light of the above discussion, now it would be convenient to first discuss with the prosecution case emanating out of documentary evidence.
Based on the written complaint, dated 04.08.2015, of P.W.1, P.W.13-the then Sub-Inspector of Police, Julapally Police Station, registered F.I.R.No.85 of 2015 on 04.08.2015 and handed over the investigation to P.W.14-the Circle Inspector of Police of Sulthanabad Police Station, Karimnagar District immediately after registration of the F.I.R. In crux, the mother of the victim girl (P.W.1) has stated that on 03.08.2015 she kept her husband at the house to take care of her daughter (victim) and went to attend coolie work and by the time she reached the house at about 6.30 P.M., her daughter was found sitting near the house of Buchi Mallamma; that she went inside the house and after some time, she came out of her house and saw her daughter Komalatha was not there; that she found her daughter coming out from the house of the accused without blouse; that when she reached house, she noticed injuries on her back and chest and also found hay sticks on her hair and that on enquiry, the victim girl informed to P.W.1 by making signals that the accused had committed sexual assault on her by taking her to back side of house where there is hay heap.
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GSD, J Crla_2965_2018 At this juncture, without examining the admissibility of the confessional statement, in order to satisfy my conscience, it would be convenient to mention as to what stands admitted by the appellant/accused. Ex.P3 is the confessional statement of the accused, which reads as under:-
"I am a resident of Lalapalli village eking out my livelihood by doing agriculture and labour work. In our locality near our house, the house of one Bukkala Pochamallu house is located. He has got two daughters. Elder daughter was married, but her husband died, therefore she lives in his house and his younger daughter Komalatha, aged 17 years. She is deaf and dumb and she is suffering with mental illness, as such she stays at the house only. To look after her, anyone used to stay at the house. The daughter of Pochamallu namely Komalatha used to visit some houses near her house. Since my house is situated near her house, she used to visit our house now and then. As usual on 03.08.2015 evening at about 6.30 P.M., daughter of Pochamallu namely Komalatha was found sitting near the house of Buchi Mallamma. After some time Buchi Mallamma went insider her house seeing that Komalatha was alone sitting in front of the house. I with bad intention to enjoy her sexually, I called her by making signals, she came to me, I took her beside my house near a hay heap and laid her down, removed her jacket and enjoyed her sexually and at the that time, I bite on her chest. Subsequently, I set right her blouse, wore my clothes and sent her as nobody could see her. She went to her house without jacket. I kept her jacket in my house to avoid any suspicion. On that night I kept my underwear in the clothes of my house and went away by changing my clothes fearing that I may be caught. I fled away to Karimnagar and Peddapalli. Since I had no money, I returned to my house today, then police caught me."
According to P.W.14, the confessional statement was recorded by him in the presence of P.Ws.6 and 7 and the said confessional 13 GSD, J Crla_2965_2018 statement was also signed by the Investigating Officer. But in the cross-examination, P.W.6 admitted in his cross-examination that the panchanama was prepared by one police constable. Significantly, the accused, as per the confessional statement, was taken into custody only on 10.08.2015 at 4.30 P.M., got his confessional statement recorded and thereafter he was shown as arrested at 6.30 P.M., at the police station. The case was registered on 04.08.2015 at 11.00 A.M., whereas according to the prosecution version and the sketch map prepared by the police, the houses of the complainant, accused and the other villagers are situated within the same vicinity and are adjacent to each other. Now, what investigation was conducted from 4th to 10th August, 2015, the record is conspicuously silent. It is not the case of the prosecution or the mother of the victim or that of the Investigating Officer that the accused was present at his house nor it is the case of the Investigating Officer that the accused had to be traced through some other source. Then, how the Investigating Officer did reach up to the accused suddenly on 10.08.2015, is not on record. Hence, the first link of the chain is missing.
According to P.W.1, the mother of the victim girl, on 03.08.2015, when she returned to house at 6.00 P.M., she found her daughter at the house of her neighbour-B.Mallamma. At about 7.00 P.M., when she went to the house of said Mallamma to bring her daughter, she did not find her there, on searching she noticed that 14 GSD, J Crla_2965_2018 her daughter was coming from the back side of the house of the accused and the blouse was missing from the body of her daughter. Seeing the condition of her daughter, she informed Mallamma that the accused committed sexual assault on her daughter. However, she has given written complaint to the police on 04.08.2015 at 11.00 A.M., basing on which the F.I.R. was registered, whereas, according to the Investigating Officer, the distance between the place of occurrence and Police Station is only 17 K.Ms. The accused was known to her, she informed about the incident, much less to say, the heinous crime committed by the accused to her husband and neighbours immediately when she noticed the condition of her daughter. Under these circumstances, the factum of consultations, due deliberations and false implication of the accused cannot be ruled out. Except giving bald explanation that due to darkness on the previous night, the complaint was lodged on the next day, there is nothing on the record, as to why the father of the victim has not lodged the complaint on the same day immediately he came to know about the alleged incident from his wife. Interestingly, the statement of the father of the victim, who was very well present at home at the time when the alleged incident has happened, was also recorded by the police, but the reasons best known to the prosecution, he being the material witness was not examined before the Court, to elicit the truth. Hence, another link of the chain is missing.
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GSD, J Crla_2965_2018 Before discussing the testimony of the prosecution witnesses, to highlight the discrepancies, variations, contradictions, lack of proof beyond reasonable doubt and the missing links in the prosecution case, it would be convenient to take notice of the law on what all is required to be considered in proving the charged offence based on circumstantial evidence.
It is trite law that in criminal cases, the burden of proof on the prosecution is one of proof beyond reasonable doubt as opposed to the principle of 'preponderance of probabilities'. It is also a matter of accepted position that while appreciating circumstantial evidence, the Court must adopt a very cautious approach to evaluate circumstantial evidence.
In Krishnan v. State3, the Apex Court after considering a large number of its earlier judgments observed as follows:
"15. ... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 3 (2008) 15 SCC 430 16 GSD, J Crla_2965_2018
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra4)"
In Sharad Birdhichand Sarda v. State of Maharashtra5 while dealing with circumstantial evidence, it has been held by the Apex Court that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are:
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with 4 (1982) 2 SCC 351) 5 (1984) 4 SCC 116 17 GSD, J Crla_2965_2018 the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Even in the case of G. Parshwanath v. State of Karnataka6, the Apex Court in paragraphs 23 and 24 observed as under:
"23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts 6 (2010) 8 SCC 593 18 GSD, J Crla_2965_2018 by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
Recently in Gargi v. State of Haryana7 the Apex Court, has discussed the principles governing circumstantial evidence which are summarized hereunder:-
"(i) Evidence may either be direct or circumstantial. Circumstantial evidence is the one where other facts are proved from which the existence of fact in issue may either be logically inferred, or at least rendered more probable.
(ii) Three tests ought to be satisfied where a decision rests solely on circumstantial evidence - firstly, all circumstances from which inference of guilt is drawn must be cogently and firmly established, secondly, the circumstances must unerringly point towards the guilt of the accused, and thirdly, the circumstances taken together must form a chain so complete that it becomes incapable of explanation on any reasonable hypothesis except for the guilt of the accused."
7 (2019) 9 SCC 738 19 GSD, J Crla_2965_2018 Applying the law laid down by the Apex Court in the aforesaid decisions to the facts of the case on hand, it is to be considered, whether in the facts and circumstances of the case, the learned trial Court is justified in passing the order of conviction?
The contents of the First Information Report constitute the factual depiction of an occurrence. This piece of evidence is of utmost importance. The evidence produced by the prosecution during the course of trial, will accordingly have to be evaluated to substantiate the credibility of the charges leveled against the accused.
In the present case, it is required to be noted that, the genesis of the so called complaint lodged by P.W.1 itself is suspicious and doubtful. A bare perusal of the written complaint, it transpires that the same was reduced into writing by someone else and not the mother of the victim girl. Even the thumb impression appears on the complaint (Ex.P1) does not disclose as to whether it is the Right or Left thumb impression of P.W.1. During the course of trial, the written complaint was got exhibited and not the thumb impression. Assuming for the sake of the prosecution case, the said written complaint was lodged by P.W.1 herself, it bears the thumb impression, which shows that she is an illiterate lady. In such circumstances, it is the duty of the prosecution to prove the document through the scribe. But, there is nothing on record to show as to who has scribed the complaint (Ex.P1) and at whose 20 GSD, J Crla_2965_2018 instance the same was reduced into writing. It is also interesting to note that Ex.P1 said to have been lodged by P.W.1 at the Police Station on 04.08.2015 at 11.00 A.M., bears the thumb impression, whereas she was examined before the Court as P.W.1 and her signature appears on the deposition form, but not the thumb impression. Thus, a doubt arises in the mind of the Court as to whether the complaint was lodged by P.W.1 herself or it was filed by someone else other than P.W.1.
In the present case, the prosecution as well as the learned trial Court considered the recovery of the two material objects i.e., the blouse of the victim girl and underwear of the accused, which were said to have been recovered at the instance of the accused and the confessional statement of the accused while he was in police custody.
As stated above, in order to prove the case, the prosecution in total has examined as many as fourteen witnesses, out of whom, P.W.6 is the V.R.O. and P.W.7 is the Panchayat Secretary, who stood as panch witnesses for recovery-cum-confessional panchanama, whereas, according to P.W.14, the Investigating Officer, the said recovery was made at the instance of the accused and he recorded the confessional statement of the accused. In this regard, it would be convenient to evaluate the evidence of these three witnesses P.Ws.6, 7 and 14. P.W.6 in his chief examination stated that on 10.08.2015, as per the instructions of the M.R.O, he had gone to Lalapalli Village at 21 GSD, J Crla_2965_2018 about 4.30 P.M., and he along with P.W.7 had gone to the house of the victim and there they found the accused in the custody of the police. On the request of the police, they examined the accused, who voluntarily confessed to have committed rape on the victim girl, he went inside his house and brought his underwear and blouse of the victim and produced before them. The said articles were seized under the cover of panchanama prepared at the house of the accused. He along with P.W.7 signed the panchanama at 16.45 P.M. He identified the signature on Ex.P3-Panchanama. He further stated that he can identify blouse and underwear of the accused, if shown to him. During cross-examination, P.W.6 stated that at the oral instructions of the Mandal Revenue Officer, he has appeared as a panch witness, however the police did not serve any notice in this case requesting him to act as panch witness. He further stated that there were neighbouring people present when he went to the house of the victim. He also stated that one police constable prepared the panchanama. However, he denied the suggestion that the accused did not produce his underwear and blouse of the victim girl; the confession of the accused was not recorded by police in their presence and that at the instance of police he is deposing false.
P.W.7, in his chief-examination, stated that on 10.08.2015 at 4.30 P.M., the Inspector of Police, Sulthanabad, called him and P.W.6 to the house of the accused in Lalapalli Village. Accused confessed before them that he kept his underwear and blouse of the victim at 22 GSD, J Crla_2965_2018 his house and shown the said two articles and that the police recovered the said articles under a cover of panchanama and he along with P.W.6 signed on it. The said blouse and underwear were got marked as M.O.1 and 2 through this witness. During cross- examination, this witness stated that the house of the accused surrounded by several other residential houses and there are local inhabitants. Nothing is handed over to the inmates of the house where the property was seized. He denied the suggestion that on 10.08.2015 the accused did not confess anything before them and that at the instance of police he was deposing falsehood.
P.W.14, who is the Investigating Officer, in his chief examination has deposed that on 10.08.2015 he apprehended the accused at his house; since the accused was in a mood to confess, he secured the presence of P.Ws.6 and 7; interrogated the accused in the presence of P.Ws.6 and 7; the accused voluntarily confessed his involvement and produced the blouse of the victim taken away by him at the time of commission of offence and also produced his underwear. He recorded the statement of the accused and seized the two items under a cover of confession-cum-recovery panchanama (Ex.P3). M.Os.1 and 2 are the blouse and underwear. Then he brought the accused to the police station at 6.30 P.M. and after following the procedure, he affected the arrest of the accused. During cross-examination, he stated that the persons available to him were secured to act as mediators for confession-cum-recovery 23 GSD, J Crla_2965_2018 panchanama. He did not secure the presence of the people at the scene of offence to act as mediators. There are no compound walls to the houses situated at the scene of offence, those are huts and old tiled houses. He did not serve any summons to P.Ws.6 and 7, to act as mediators. He also did not give any requisition to their higher officials to depute mediators for confession purpose, however, he made oral request over phone. He did not take the mediators, P.Ws.6 and 7, to the house of the victim. However, he denied the suggestion that the accused did not confess before him and the mediators and that he did not seize M.Os.1 and 2 from the accused at the time of alleged confession-cum-recovery.
In the light of the evidence of the aforesaid three witnesses, the most significant issue in the present case is the veracity of the confessional statement made by the accused before the aforesaid three witnesses. It is evident that the confessional statement was made by the accused before the police officer while he was in police custody. It is also significant to note that the accused was arrested at 6.30 P.M., and his confessional statement was recorded at 4.30 P.M., on 10.08.2015. Section 25 of the Evidence Act postulates that the confession made by an accused before a police officer cannot be proved against him. Section 26 of the Evidence Act stipulates that a confession made by an accused while in police custody cannot be proved against him. However, there is an exception to the rule provided for in by the aforesaid two Sections i.e., 25 and 26 of the 24 GSD, J Crla_2965_2018 Evidence Act; under Section 27 of the Evidence Act, according to which, a confessional statement made before a police officer or while an accused is in police custody, can be proved against him, if the same leads to discovery of an unknown fact or a new fact. In order to apply the exception postulated in Section 27 of the Evidence Act, to the facts of the present case, it is to be seen, whether the confessional statement made by the accused can be said to have led to the discovery of an unknown fact?
A perusal of the evidence of P.Ws.6 and 7, who are said to be the panch witnesses, it reveals that the factual position with regard to the recovery of material objects i.e., M.Os.1 and 2, from the house of the accused, which were shown to have been recovered, was already known to the police much prior to such recovery because of the reason that in the complaint it was already mentioned that while the victim was returned to house, the blouse was missing from her body. It was also mentioned in the complaint that the accused committed sexual assault on the victim girl. In this backdrop, the factual position that recovery of these two material objects would be made by the police was a matter of common knowledge well before the confessional statement was made. In such circumstances, the statement recorded vide Ex.P3 is inadmissible in spite of the mandate stipulated in Section 27 of the Evidence Act, because of the reason that it cannot be said to have been resulted in the discovery of any new fact. However, the learned trial Court on erroneous 25 GSD, J Crla_2965_2018 assumptions has given the finding that Ex.P3 is admissible in evidence under Section 27 of the Evidence Act.
Moreover, in this case, the recording of the confessional statement itself is doubtful. In this regard the evidence of both P.Ws.6 and 7 is quite contradictory to each other. According to P.W.6, he reached the house of the victim at 4.30 P.M., on 10.08.2015 along with P.W.7 and by that time, the accused was already in the custody of the police, thereafter the recovery-cum-confessional statement was reduced into writing by one police constable and thereafter, he along with P.W.7 put their signatures on the same. Whereas, according to P.W.7, he was called by the police to record the confessional statement of the accused, as such he came to the house of the accused and by that time the accused was already in the custody of the police. According to this witness, the statement was recorded at the house of the accused. Interestingly, at the time of recovery and recording the statement, the neighbouring people were already present at the house of the victim. According to both the witnesses, the accused went inside his house and brought the blouse and the underwear and the same were recovered in front of the witnesses. The police even did not bother to take steps to get the blouse of the victim identified by her mother, at whose instance the allegation of sexual assault have been leveled against the accused. The learned trial Court came to the conclusion that the veracity of the witnesses P.Ws.6 and 7 is trust worthy and corroborating, 26 GSD, J Crla_2965_2018 because they are Government servants. However, a perusal of the evidence of the aforesaid three witnesses, it seems that P.W.6 and P.W.7 were called by the Investigating Officer directly without giving any police requisition to their higher officials and a further perusal of the evidence of these witnesses, it seems that they have not either gone to the house of the accused or to the house of P.W.1 to record the confessional statement of the accused or to get the recovery of M.Os.1 and 2. If at all the recovery of the blouse was made at the instance of the accused from his house, the same could have been got identified by the mother of the victim girl. But this was not done by the Investigating Officer. Interestingly, none of the witnesses have stated about the colour of the blouse of the victim girl. Even P.W.1 in her so called written complaint also did not mention the colour of the blouse. Then how the panch witnesses and the Investigating Officer have believed the version of the accused to be true, is unbelievable. In the aforesaid factual backdrop, it can be safely concluded that the two material objects M.Os.1 and 2 which eventually came to be recovered by the police, allegedly at the instance of the accused, may well have been planted by the police to suit the prosecution case. Rather, from the face of the record, it transpires that the Investigating Officer has completed the formalities of recording the confessional statement, recovery of the articles and arrest of the accused etc., by sitting in the police station and not at the house of the accused as alleged by the prosecution.
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GSD, J Crla_2965_2018 Another important factor in this case is that the alleged confessional statement was not recorded by the Investigating Officer himself, rather the endorsement on the same, reflects the name of V.Hari Keshav, PC 2888 as the scribe of confession-cum-recovery panchaname (Ex.P3). The said constable PC 2888 could have been the best possible witness to prove the recovery and confession of the accused, but for the reasons best known to the prosecution, he was not examined as one of the witnesses, which is fatal to the case of the prosecution.
On account of the aforesaid fact that the recovery and confessional statement made by the accused, which is the main linking factor in the circumstantial evidence of the prosecution version, being inadmissible as the same cannot be proved against the accused, I am of the considered view that the prosecution's case stands fully demolished.
The other significant factor of evidence to link the accused to the present crime, is the medical evidence, which emerges from the statement made by P.W.9-Dr.B.Rathnamala. According to her, on the police requisition, she examined the victim girl on 06.08.2015 at 11.30 A.M. and found multiple small abrasions on the back of the chest of the victim. She collected two vaginal smears, two vaginal slides and vaginal wash to send the same to R.F.S.L. for chemical analysis. According to this witness, the hymen of the victim was not intact and it was admitting two fingers without pain. Thereafter, 28 GSD, J Crla_2965_2018 she issued the medical certificate-Ex.P4, pending disposal of R.F.S.L. report. This witness during her chief-examination categorically stated that the R.F.S.L report contains that semen and spermatozoa are detected in item No.6 (a torn green colour cotton underwear with dirty stains). Semen and spermatozoa were not detected on item Nos.1 to 5. However, interestingly she has given the final opinion based on the R.F.S.L. report and stated that the offence is occurred. The medical certificate, R.F.S.L. report and the final opinion given by P.W.9 were marked as Exs.P4, P5 and P6. During cross-examination, she denied the suggestion that the medical certificate-Ex.P4 is different from her final opinion-Ex.P6 with regard to hymen.
A perusal of Ex.P5, which is the R.F.S.L. report, item Nos.1 to 4 are the items which were collected by P.W.9 during the examination of the victim on 06.08.2015. Item No.5 is the torn brinjal colour polyster blouse and item No.6 is the torn green colour cotton underwear with dirty stains. According to the report, on examination of item Nos.1 to 6, semen and spermatozoa are detected only in item No.6 and not detected on item Nos.1 to 5. Surprisingly, P.W.9 has given her final opinion-Ex.P6 basing on the R.F.S.L. Report (Ex.P5). According to Ex.P6, semen and spermatozoa are detected on item Nos.1 to 6. By the physical examination, multiple small abrasions are found all over the back of the chest. By the vaginal examination, vagina admitting two fingers with pain and 29 GSD, J Crla_2965_2018 hymen is ruptured. Finally according to the opinion of P.W.9, the offence is occurred. When these contradictions were pointed out during her cross-examination, she stated that in Ex.P6 by mistake it was mentioned that vagina is admitting two fingers with pain instead of without pain. She also admitted that in her final opinion she mentioned that spermatozoa are detected on item Nos.1 to 6. However, she denied the suggestion that the R.F.S.L. report is quite contrary to her final opinion. Surprisingly she stated that, in her final opinion she mentioned that the offence was occurred, but no specific offence is mentioned. She further denied the suggestion that her reports are incorrect and she is deposing falsehood.
Giving a good bye to the contradictory opinion given by P.W.9-Doctor, the learned trial Court has given a vague finding stating therein that, because the police have mentioned the crime number, offence etc., perhaps it is the reason that the doctor mentioned that the offence is occurred. The learned trial Court further observed that, by observing the physical examination and also clinical examination, the doctor opined that the sexual assault was made on the victim, which is conclusive in nature. Learned trial Court further given a finding that as seen from the R.F.S.L. report and medical certificate and final opinion of the lady doctor, sexual assault was committed on the victim. This finding of the trial Court is based on surmises and conjectures and is quite contrary to the documentary evidence on record. P.W.9 categorically stated that she 30 GSD, J Crla_2965_2018 mentioned only offence committed and nowhere mentioned that sexual assault was committed on the victim. This particular statement of P.W.9, to my mind, is wholly insignificant to connect with the crime under appeal. The discrepancies as found in Exs.P5 and P6, when viewed closely, leaves no room to accept the credibility of statement made by P.W.9. In view of the contradictory opinions in Exs.P5 and P6, the medical evidence produced by the prosecution does not support the prosecution story that the accused committed sexual assault on the victim girl. The prosecution story is wholly unacceptable, keeping in mind the evidence of P.W.9- Dr.B.Rathnamala.
Admittedly in this case, the victim is minor under the age of 18 years and she is deaf and dumb and is also mentally retorted with 90% disability. The physical and mental condition of the victim was proved by the prosecution by getting their witnesses examined before the Court as P.Ws.2, 8, 10 and 12. All the witnesses categorically stated about the abnormality of the victim girl. P.W.12- Dr.K.Gangaram in his evidence specifically stated that on 14.03.2016 the committee of Psychiatrists examined the victim girl and she was found to have been with severe mental retardation and disability at 90%. Accordingly they have issued the disability certificate. During cross-examination, he stated that the patient cannot take care of herself and needs assistance from others to attend her day today normal pursuits. She is deaf and dumb also.
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GSD, J Crla_2965_2018 As already stated earlier, there is no eye witness to the occurrence and the case is based completely on circumstantial evidence. On appreciation of the entire evidence on record it is found that there are material contradictions in the depositions of the witnesses, particularly P.Ws.1 and 3, who are the mother and daughter, however, the learned trial Court believed the prosecution version without giving any cogent reasons. The contradictions, which came to be considered by the learned trial Court cannot be said to be minor contradictions. In the instant case the genesis of the crime emerges from the First Information Report. According to Ex.P1, on 03.08.2015, P.W.1 kept her husband at home to take care of their daughter and gone to attend the coolie work. In the evening, when she returned to her house, found the victim sitting at the house of one B.Mallamma. After some time, when she gone to the house of Mallamma, she did not find her daughter and saw her daughter coming out from the house of the accused without blouse. When the victim reached the house, she noticed injuries on her back and chest and also found hay sticks in her hair. On enquiry her daughter informed her making signals that the accused had committed sexual assault on her, taking advantage of her deaf and dumbness, he took her to the backside of house where there is hay heap and committed rape on her. According to P.W.12, victim girl was found to have been suffering from severe mental retardation, which was also supported by the other witnesses. In such situation, there is no explanation from the prosecution as to how the victim 32 GSD, J Crla_2965_2018 has narrated to her mother through signals that the accused had committed sexual assault on her. However, P.W.1 quite contradicting to the version in Ex.P1 has stated before the Court that she has seen the victim coming from the back side house of the accused. She noticed that the blouse was missing on her body and also several injuries on her back, all are scratch injuries. Here, she made an improvement and stated that she noticed saliva on the chest of her daughter. She informed to the said Mallamma that the accused committed sexual assault on her daughter. She categorically deposed that her daughter is not in a position to state anything against her because of her mental condition.
P.W.4, M.Shankaramma, to whom P.W.1 said to have informed about commission of the crime by the accused, did not support the case of the prosecution and she has been declared hostile. As already stated earlier, according to the F.I.R. version as well as the evidence of P.W.1 on 03.08.2015 she had gone to coolie work leaving her daughter in the custody of her husband. When she returned from coolie work, she found her daughter at the house of one B.Mallamma. Thus, this witness has nowhere stated about the presence of her elder daughter at home on the alleged date of incident. Surprisingly, the prosecution withheld to examine Pochamallu, the husband of P.W.1, as one of the witnesses before the Court and got examined the elder daughter of P.W.1 as P.W.3. She has deposed that the victim is mentally retarded. In the absence of 33 GSD, J Crla_2965_2018 her mother at home, one has to attend her sister. On the date of the incident, she along with her father were present at home, when her mother went on coolie work. Her sister sat at the house of Buchi Mallamma. After some time, her sister returned to home through the house lane of the accused. There is no blouse on her person and there were injuries on her back and also split marks on her breast. On seeing her sister, they were under the impression that the accused might have committed rape on her. The victim did not state anything about the sexual assault. During cross-examination, she categorically stated that twenty minutes after her mother returning to home and informing that her sister was not present at the house of Mallamma, then her sister returned home. After her sister returned to home, they informed the same to one M.Mallaiah and Shankaramma. She further stated that as and when the wearing apparels of her sister are fallen, she used to bring the same by catching hold the clothes in her hands. However, she denied the suggestion that there are no injuries and split marks on her chest and that the accused did not commit sexual assault on her victim.
Thus, a bare perusal of the evidence of P.W.1 and P.W.3, who are the mother and daughter duo, it is clear that there are material contradictions and improvements on the factual aspects. A further perusal of the evidence of P.W.3, it transpires that nobody has seen as to where from the victim has returned to house. There is no iota of evidence on record to prove that any sexual assault was 34 GSD, J Crla_2965_2018 committed on the victim. There is nothing on record to prove that the injuries were also found on the chest of the victim.
For the reasons recorded hereinabove, I am of the considered view that the evidence produced by the prosecution does not in any way establish the guilt of the accused. The prosecution had endeavored to prove the allegations leveled against the accused on the basis of circumstantial evidence. As already observed in the foregoing paragraphs, the mainstay of the prosecution evidence is the recovery-cum-confessional statement of the accused, particularly recovery of M.O.1 and M.O.2 at the instance of the accused and the evidence of the Doctor, who was examined by the prosecution as P.W.9, to prove that the sexual assault was committed by the accused. It has already been observed in the foregoing paragraphs that confessional statement made by the accused cannot be proved to the detriment of the accused. Hence, the prosecution failed to prove the vital link in the chin of events, which were intended to be established by the prosecution against the accused. It was also observed that the blouse, which was recovered at the instance of the accused was also doubtful because of the reason that the said blouse was not got identified by the mother of the victim at the time of seizure though the alleged seizure was made at the house of the accused and it has come in the evidence that the complainant and the accused used to reside in the same vicinity. From the statement of P.W.9, Dr.B.Rathnamala, and the surrounding facts, it cannot be 35 GSD, J Crla_2965_2018 positively inferred that the victim was sexually assaulted by the accused as has been alleged by the prosecution. There are material improvements and serious contradictions in the depositions of the prosecution witnesses. The prosecution has miserably failed to establish the unbroken chain of events leading to the inescapable conclusion; rather the prosecution has not been able to connect the accused with the alleged crime in any manner. Therefore, the appellant-accused is entitled for acquittal of the charges leveled against him.
In the result, the Criminal Appeal is allowed and the conviction and sentence passed by the learned I-Additional Sessions Judge, Karimnagar, against the appellant/accused for the offences punishable under Sections 376 (2) (I) of I.P.C. and Section 6 of the Protection of Children from Sexual Offences Act, by judgment dated 15.10.2018 in S.C.No.27 of 2016 are hereby set aside and he is acquitted of the said offences and he shall be set at liberty forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant/accused, shall be returned to him.
____________________ JUSTICE G.SRI DEVI 30-04-2021 Gsn/gkv 36 GSD, J Crla_2965_2018