Kerala High Court

Raju @ Pottar vs State Of Kerala on 17 June, 2022

          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

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

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.

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-

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.

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

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.

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

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

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

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

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

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