Kerala High Court

Samykutty vs State Of Kerala on 7 January, 2021

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

THURSDAY, THE 07TH DAY OF JANUARY 2021/17TH POUSHA, 1942

             Crl.Rev.Pet.No.1024 OF 2007(C)

     AGAINST THE JUDGMENT IN Crl.Appeal No.327/2006
 DATED 24-01-2007 OF SESSIONS COURT, KOZHIKODE DIVISION

C.C.No.53/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
               KUNNAMANGALAM DTD.28.4.2006


REVISION PETITIONER/APPELLANT/ACCUSED:-

           SAMYKUTTY,
           S/O.PERACHAN,
           AGED 56 YEARS,
           PUTHIYOTTIL HOUSE,
           KARANTHUR AMSOM,
           KUNNAMANGALAM, KOZHIKODE.

           BY ADVS.
           SRI.A.SUDHI VASUDEVAN (SR.)
           SRI.JOSE JONES JOSEPH

RESPONDENT/RESPONDENT/COMPLAINANT:

           STATE OF KERALA,
           REPRESENED BY THE SUB INSPECTOR OF POLICE,
           MEDICAL COLLEGE POLICE STATION,
           KOZHIKODE THROUGH THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA.

             BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 16-12-2020, THE COURT ON 07-01-2021 PASSED THE
FOLLOWING:
 Crl.R.P.No.1024 of 2007

                            ..2..



                          ORDER

Samykutty, Son of Perachan is the accused in

C.C.No.53/2002 on the file of the Judicial First Class

Magistrate Court, Kunnamangalam. He was convicted of

having committed carnal intercourse against the order of

nature on a boy. The boy is said to be of 4 years of age

and the accused is 50 years of age on the date of

occurrence. The learned Magistrate, who conducted the

trial, convicted and sentenced the accused to undergo

rigorous imprisonment for two years and also to pay a fine

of Rs.2,000/- and in default of payment of fine to undergo

simple imprisonment for three months for the offence

under Section 377 of the Indian Penal Code (hereinafter

referred to as 'the IPC'). The accused preferred Crl.Appeal

No.327/2006 before the Sessions Court, Kozhikode. The

learned Sessions Judge dismissed the appeal maintaining

the conviction and sentence rendered by the trial court. Crl.R.P.No.1024 of 2007

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2. The prosecution case in brief is that on

25.10.2001 at about 9.30 am., the accused had carnal

intercourse against the order of nature with PW2 aged

about 4 years by putting his penis into the mouth of PW2

by the side of a mill near the house of PW1. PW1 is the

mother of PW2.

3. During the trial of the case, PWs.1 to 9 were

examined and marked Exts.P1 to P5 on prosecution side.

On closing the evidence of the prosecution, the accused

was questioned under Section 313(1)(b) of the Cr.P.C. He

denied all the incriminating circumstances appearing in

the evidence against him. He stated that he had been in

close acquaintance with the family of PW1 for the last

several years. According to him, he had two daughters

and son and one of the sons expired at the age of 5 years

due to illness. Since his son was no more, he had

developed paternal affection to PW2 and was very close

with him. He would say that he used to give sweets to Crl.R.P.No.1024 of 2007

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PW2 occasionally which was not liked by PW1 for the

reasons better known to her. He also stated that PW4 who

is the husband of PW1 was an abkari trader and was

involved in several cases. According to him, PWs.1 and 4

nursed enmity towards him as they had an impression

that the criminal cases were registered against him at his

instance. Thus, he pleaded total ignorance. To prove that

PW4 was involved in criminal cases, Ext.D1 certified copy

of FIR in Crime No.84/2003 of Medical College Police

Station was produced.

4. The learned counsel for the revision petitioner

contended that the evidence of PW1 is not admissible in

evidence. Her evidence would show that he was 7 years

old at the time of his examination by the learned

Magistrate who recorded his testimony. According to the

learned counsel for the revision petitioner, the learned

Magistrate has overlooked the provisions of Section 5 of

the Indian Oaths Act which mandates that oath or Crl.R.P.No.1024 of 2007

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affirmation shall be made, among others, by all witnesses,

who are examined by a court. It was further contended

that PWs.1 and 4 bore enmity towards the accused since

they had a feeling that the accused had informed the

police about the illicit trade in alcohol by PW1 and PW4.

Elaborating on the submission, the learned counsel for the

revision petitioner submitted that going by the evidence

regarding the place where PW1 allegedly stood and the

place where the accused and PW2 allegedly stood at the

time of the occurrence, it could be seen that alleged

occurrence took place outside the visibility of PW1.

Further, it was contended that PW2 was tutored by PW4

and the evidence of PW2 was totally contradictory to what

was deposed by PW1 before court.

5. Per contra, the learned Senior Public Prosecutor

submitted that both the trial court and the appellate court

meticulously analysed the evidence in detail and entered a

finding that the accused committed the offence punishable Crl.R.P.No.1024 of 2007

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under Section 377 of the IPC. The learned Senior Public

Prosecutor maintained that the findings are not perverse

in nature. Thus, it was submitted that, unless the findings

are perverse, it would not be just and proper to set aside

the concurrent findings of facts rendered by the trial court

as well as the appellate court.

6. Heard the learned counsel for the revision

petitioner and the learned Senior Public Prosecutor for the

respondent-State.

7. The alleged place of occurrence in this case as

per Ext.P3 scene mahazar is on the south-east side of a

wall attached to the flour mill which lies on the southern

side of the flour mill which is situated 10 metres away

from the residence of PW1.

8. PW1 lodged Ext.P1 complaint before the police

alleging that on 25.10.2001 at about 9.30 am, the

accused enticed PW2 and had carnal intercourse against

the order of nature with PW2 aged 4 years old at the place Crl.R.P.No.1024 of 2007

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stated supra. In Ext.P1, she further stated that prior to

this incident he had done the very same thing to her son.

PW1 stated that she had witnessed the occurrence. PW3

one of the independent witnesses examined to support the

prosecution case turned hostile to the prosecution by

denying the occurrence. PW4, her husband, had not seen

the occurrence. Other witnesses examined were the

official witnesses.

9. PW1 clearly testified that she had seen the

accused putting his penis to the mouth of her son on the

south-eastern side of the flour mill which lies behind her

house. According to her, when she cried aloud, the

accused took to his heels to the western side and escaped

from the scene of occurrence. She stated that, while she

was engaged in washing cloth at the courtyard of her

house, she saw the incident 15 metres away.

10. PW2, the victim, supported the version of PW1

and stated that when his mother cried aloud the accused Crl.R.P.No.1024 of 2007

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took to his heels through the backside of the mill.

11. The trial court mainly relied on the oral evidence

of PWs.1 and 2 and convicted and sentenced the accused

for the offence punishable under Section 377 of the IPC.

The appellate court dismissed the appeal.

12. PW2 was admittedly aged 7 years at the time of

evidence. The learned Magistrate had put preliminary

questions to verify as to whether he was able to

understand and answer questions put to him. Having

satisfied that PW2 was a competent witness to testify

before court he was examined as PW2.

13. The proviso to Section 5 of the Indian Oaths

Act, 1873 prescribes that:-

"Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this Crl.R.P.No.1024 of 2007

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section and the provisions of Section 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth."

14. In Rameshwar v. The State of Rajasthan

[AIR (39) 1952 SC 54] the relevancy of Section 118 of

the Evidence Act and Section 13 of the Oaths Act has

been considered. The question is whether the opinion

referred to must be formally recorded or whether it can be

inferred from the circumstances in which the deposition

was taken. Paragraphs 7 to 13 of the judgment in

Rameshwar's case (supra) read thus:-

"(7) The proviso quoted above must be read along with Section 118 of the Evidence Act and Section 13 of the Oaths Act. In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is Crl.R.P.No.1024 of 2007

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dealt with in Section 118. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that Section 118 must prevail.

(8) Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view of Section 118 these matters only touch credibility and not admissibility. In my opinion, Section 13 of the Oaths Act places this beyond doubt. It states-

"No omission to take any oath or make any affirmation......... and no irregularity whatever, in the form in which any one of Crl.R.P.No.1024 of 2007

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them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever.......... "

(9) Section 5 is the main provision regarding the administration of oaths. The proviso only sets out the cases in which the oath is not to be administered. If, therefore, an omission to take the oath does not affect the admissibility of the evidence, it follows that an irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either. Section 118 remains and unless the judge considers otherwise the witness is competent.

(10) I do not think it will be useful to consider English authorities on the point because we are governed here by the terms of the various sections I have referred to. But a decision of the Judicial Committee of the Privyi Council is in point. Their Lordships stated in Mohamed Sugal Esa v. The King (1) A.I.R. (33) 1946 P.C. 3 at p.5:-

"Section 13, Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam. If that had been the intention of the Legislature, it would have been simple to insert words in the section to that effect......... It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths (Amendment) Act (Act XXXIX of 1939) which settles the law in Crl.R.P.No.1024 of 2007

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accordance with the Bengal and Oudh decisions referred to above."

The decisions to which their Lordships refer are R. v. Sewa Bhogta, 14 Beng.L.R.294 (F.B.) and Ram Samujh v. Emperor, 10 Oudh Cas.337. The decisions there were that the section being unqualified in terms did apply to a case where the Court accepted the evidence of a child to whom the oath was not administered on the ground that the witness did not understand its nature. The principle of the decisions applies here because, as their Lordships observe, the section is unqualified in its terms.

(11) I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate. In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence. It is also an important fact that the accused, who was represented by counsel, did not object. Had he Crl.R.P.No.1024 of 2007

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raised the point the Judge would doubtless have made good the omission. I am of opinion that Mt.Purni was a competent witness and that her evidence is admissible. In the Privy Council case which I have just cited, their Lordships said-

"It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness."

(12) That is the very point here. One can presume that the learned Judge had that in mind from the fact that he examined the child after referring to a fact which arises out of the proviso.

(13) As regards her credibility, the learned trial Judge, who recorded her evidence and saw her in the box, has believed her, so has the High Court; and it is important to note that the learned Sessions Judge who acquitted the accused has not disbelieved her. On the contrary he says he is morally convinced. All he says is that in the absence of corroboration it will be unsafe to convict because the Privy Council and other cases advise corroboration as a matter of prudence."

15. On going through the evidence of PW2, there is

nothing on record to show that the learned Magistrate has Crl.R.P.No.1024 of 2007

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set out the actual questions put by him to PW2 and the

answers which were given by PW2 either in the deposition

or any other contemporaneous records. The learned

Magistrate has overlooked the provisions of Section 5 of

the Indian Oaths Act which mandates that oath or

affirmation shall be made, among others, by all witnesses,

who are examined by a court. The details of the narration

given by the learned Magistrate would indicate that at the

best he had tested the competency of witness to testify

before the court but not his understanding of the oath or

affirmation as stated in Rameshwar's case (supra).

Without testing the latter, the understanding arrived at by

the learned Magistrate who administered affirmation to

PW2 is clearly inadmissible in evidence.

16. PW1 in her chief examination stated that the

incident had taken place in the rear side of the mill. On

being cross-examined, PW1 stated that the rear of the mill

would remain outside her visibility if viewed from the Crl.R.P.No.1024 of 2007

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place where she stood. Ext.P3 mahazar describes the

place of occurrence. The place from where PW1 allegedly

viewed the incident during her cross examination (as per

her first answer in cross at page 6) is on the southern side

of her house. When PW1 was cross-examined in detail (as

per her second answer in cross at page 8) the occurrence

place was on the south-eastern corner of the mill which is

nearly 15 metres away from the place she stood. The

place of occurrence as per Ext.P3 scene mahazar is on the

south-eastern corner of the flour mill. If the evidence of

PW1 is accepted, it is difficult to view the occurrence place

from the place where she allegedly stood to witness the

occurrence.

17. The evidence of PW2 was totally contradictory to

what was deposed by PW1. PW1 in her evidence stated

that it was a holiday for the school in which PW2 studied

on the date of occurrence. On the other hand, PW2 in his

evidence stated that it was a working day for the school Crl.R.P.No.1024 of 2007

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on the date of incident. It is pertinent to note that the

occurrence took place at about 9.30 am. Had it been a

working day as alleged by PW2, the incident would not

have been taken place as alleged by the prosecution. PW2

stated during cross examination that PW1 came to him

when the accused took him for buying sweets. However,

on being cross examined, PW1 stated that, when the child

was not found in the courtyard of the house, she searched

for the child and witnessed the incident for about 2 or 3

minutes. Further, when PW2 was examined, he admitted

that he was tutored by PW4 before giving evidence. The

evidence of PW2 would show that PW3, his uncle was

present at the alleged place of occurrence. However, his

uncle was not examined to prove the prosecution case. In

Ext.P1 complaint PW1 stated that the accused had

committed such an offence earlier as well. Mere allegation

that he had attempted to commit similar offence earlier is

not sufficient to attract the offence under Section 377 of Crl.R.P.No.1024 of 2007

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the IPC. Character evidence is inadmissible in a criminal

case.

18. Immediately after the occurrence PW2 was

examined by PW8 on 25.10.2001 at 2.50 pm and issued

Ext.P5 wound certificate. Ext.P5 wound certificate would

indicate that the mouth, oral cavity and throat of PW2

were found normal. The accused was subjected to potency

test. Ext.P2 is the certificate issued by PW5. Ext.P2 would

indicate that there is nothing to suggest that the accused

was incapable of performing sexual intercourse. When a

medical expert categorically ruled out the commission of

an unnatural offence having regard to his expertise, it was

obligatory on the part of the prosecution to furnish an

explanation. It may be true that absence of medical

evidence by itself may not be a crucial factor in all cases,

but, the same has to be taken into consideration as a

relevant factor when other evidences point towards the

innocence of the accused. In Gowrishankara Crl.R.P.No.1024 of 2007

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Swamigalu v. State of Karnataka and another

[(2008) 14 SCC 411] the Apex Court held in paragraph

30 of the judgment as follows:-

"30. When an expert categorically ruled out the commission of the unnatural offence having regard to his expertise, it was obligatory on the part of the prosecution to draw his attention to the said authorities so as to enable him to furnish an explanation. It may be true that absence of medical offence (sic evidence) by itself may not be a crucial factor in all cases, but, the same has to be taken into consideration as a relevant factor when other evidences point towards the innocence of the appellant."

19. In the absence of medical evidence to support

the offence and also in the absence of reliable evidence to

support the prosecution case, the whole prosecution story

is improbable and that it is impossible for the accused to

commit the unnatural offence as alleged by the

prosecution. The prosecution case is not believable. After Crl.R.P.No.1024 of 2007

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a careful consideration of the entire evidence, this Court is

constrained to hold that the prosecution case is an

improbable one. It is brought out in evidence that PW4

was involved in an abkari offence. The occurrence was not

taken place in the manner as alleged by the prosecution.