Devarajan vs The State Of Kerala
2024 Latest Caselaw 4742 Ker

Kerala High Court

Devarajan vs The State Of Kerala on 7 February, 2024

Author: P.B.Suresh Kumar

Bench: P.B.Suresh Kumar

Crl. Appeal No. 1149/2018         :1:




                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                 THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                       &
                  THE HONOURABLE MR. JUSTICE JOHNSON JOHN
        WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
                          CRL.A NO. 1149 OF 2018
   AGAINST THE JUDGMENT DATED 17.07.2018 IN SC 1070/2016 OF ADDITIONAL
  SESSIONS COURT FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL
        VIOLENCE AGAINST WOMEN & CHILDREN, THIRUVANANTHAPURAM

APPELLANT/ACCUSED:

              DEVARAJAN
              AGED 63 YEARS
              S/O ANANTHAKRISHNAN, ACHARI, RENJI BHAVAN, EDAVANAKONNAM,
              VELLALLOOR VILLAGE, CHIRAYINKEZHU TALUK,
              THIRUVANANTHAPURAM DIST. - 695 102.
              BY ADV ARUN CHAND


RESPONDENT/STATE:

              THE STATE OF KERALA
              REP BY THE SUB INSPECTOR OF POLICE, KILIMANOOR POLICE STATION
              THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
              ERNAKULAM - 682 031.
              BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN &
              CHILDREN & WELFARE OF W & C



THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2024, THE COURT ON

07.02.2024 DELIVERED THE FOLLOWING:
 Crl. Appeal No. 1149/2018          :2:



              P.B. SURESH KUMAR & JOHNSON JOHN, JJ.
            ---------------------------------------------------------
                        Crl. Appeal No. 1149 of 2018
             --------------------------------------------------------
                 Dated this the 7th day of February, 2024.

                                  JUDGMENT

Johnson John, J.

This appeal is field under Section 374(2) Cr.P.C., by the sole

accused in S.C. No. 1070 of 2016 on the file of the Additional

Sessions Judge for the Trial of Cases relating to Atrocities and

Sexual Violence against Women and Children, Thiruvananthapuram

challenging the conviction and sentence against him for the offence

punishable under Section 376(2)(j) of IPC as per the judgment

dated 17.07.2018

2. The prosecution case is that the accused, a member of the

forward caste, committed rape on the victim, a deaf and dump lady aged

78 years, suffering from mental illness who is a member of the

Scheduled Caste. The incident is alleged to have occurred in a shed

attached to house No. IV/646 of Nagaroor Grama Panchayat at about 6

p.m. on 10.11.2015.

3. On the basis of Exhibit P1, First Information Statement of PW2,

the sister of the victim, Exhibit P11, First Information Report, was

registered by PW11, Station House Officer of Kilimanoor Police Station

and PW14, the Deputy Superintendent of Police, Attingal, conducted the

initial investigation and thereafter PW15, the then Deputy

Superintendent of Police, Attingal, completed the investigation and filed

the final report before the Judicial First Class Magistrate Court, Attingal

4. After committal, when the accused was produced before the

trial court, charge was framed against him for the offences punishable

under Section 376 IPC and Section 3(2) (v) of Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 and when the

accused pleaded not guilty, the prosecution examined PWs 1 to 15 and

marked Exhibits P1 to P20 and MOs I and II to prove the charge against

the accused.

5. After the closure of the prosecution evidence, the accused was

questioned under Section 313(1)(b) Cr.P.C regarding the incriminating

circumstances proved against him in the evidence of prosecution. The

accused denied all those circumstances and maintained his innocence.

6. Since the trial court found that it is not a fit case to acquit the

accused under Section 232 Cr.P.C, he was asked to enter on his defence

and adduce evidence in support thereof. From the side of the accused,

DW1 was examined.

7. On a consideration of the oral and documentary evidence on

record and after hearing both sides, the court below found that the

prosecution has not proved the offence under Section 3(2)(v) of the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Act, 1989 against the accused and hence, he is acquitted of the said

offence. But the court below found the accused guilty of the offence

under Section 376(2)(j) of IPC and he is convicted and sentenced to

undergo imprisonment for life and to pay a fine of Rs.1,00,000/- and in

default of payment of fine, to undergo rigorous imprisonment for two

years for the offence under Section 376(2)(j) of IPC.

8. Heard Sri. Arun Chand, the learned counsel for the appellant

and Smt. Sheeba Thomas, the learned Public Prosecutor.

9. The point that arises for consideration in this appeal is whether

the conviction entered and the sentence passed against the accused by

the trial court are sustainable or not.

10. The learned counsel for the appellant argued that there is no

reliable evidence to show that the victim is an unsound person and the

Investigating Officer has not complied the mandate of Section 154 Cr.P.C

and sub-Section 5A of Section of 164 Cr.P.C and since the prosecution

omitted to record the statement of the victim, the accused could not

cross examine the victim and hence, there was no fair trial. It is also

argued that the evidence of PWs 1 and 2 regarding the occurrence does

not tally and that there are serious contradictions and inconsistencies in

their evidence regarding the occurrence . It is pointed out that there is

no scientific or medical evidence in support of the evidence of PWs 1 and

2 regarding the alleged incident and the prosecution has also no

explained the delay in registering the crime and therefore, the accused is

entitled for the benefit of reasonable doubt.

11. The learned Public Prosecutor argued that the prosecution has

adduced clear evidence to show that the victim is an unsound person

suffering from mental illness and the trial court was also satisfied that

she is not competent to testify as a witness and therefore, the

contention of the appellant regarding non-compliance of Sections 154

and 164 Cr.P.C is not sustainable. It is also pointed out that PWs 1 and 2

are direct witness to the occurrence and even though they were

seriously cross examined, nothing material was brought out to discredit

their evidence regarding the act committed by the accused and in view

of the reliable and convincing evidence of PWs 1 and 2 regarding the

occurrence, the impugned judgment of the court below is only to be

confirmed.

12. PW1 is a neighbour of the victim and the accused. He deposed

that the victim is suffering from mental illness and she used to wander

through the nearby properties and used to pick twigs and firewoods from

the rubber estate. According to PW1, at about 6 p.m., on 10.11.2015, he

heard a sound of murmur and moaning from the firewood shed attached

to the house of the sister of the accused and when he reached there, he

saw the accused and the victim lying in a naked condition and he

informed the matter to the sister of the victim. According to PW1, when

he reached the place of occurrence again along with the sister of the

victim, the accused was conducting sexual intercourse with the victim by

lying over her body.

13. The evidence of PW1 shows that the accused has not noticed

their presence and only when he beat the accused twice with a twig, he

released the victim and stood up and left the place after wearing his

dress. PW1 also stated that the sister of the victim had taken the victim

along with her to their house.

14. The younger sister of the victim is examined as PW2 and she

deposed that her elder sister is suffering from mental illness and she

used to wander in the locality. According to PW2, they have no other

relatives and that the accused is residing in the house of his sister near

to their house. During 2015, her neighbour Manoharan informed her that

the accused is lying over the body of her sister in the shed attached to

the house of the sister of the accused and when she reached the place

along with Manoharan, they saw the accused lying over the naked body

of her sister and subjecting her to sexual intercourse. The evidence of

PW2 shows that the accused was not able to notice their presence

because of what he was doing and only when Manoharan beat him with a

twig, he stood up and left the place with his dress. PW2 stated that she

had taken her sister to their house and her sister is unable to

differentiate the courtyard of their house from the adjacent properties.

When a question was put regarding the delay in informing the police, the

witness stated that she is a lady and there was nobody else to help them

and it is also difficult for her to leave her sister alone.

15. According to PW2, when she preferred the complaint, police

came there and took the victim to hospital. PW2 also identified the

accused before the court. PW2 identified her thumb impression in Exhibit

P1 First Information Statement given to the police.

16. PW3 is a neighbour of the accused and the victim and his

evidence shows that he signed Exhibit P2 scene mahazar and Exhibit P3

mahazar prepared by the police for the recovery of the dress of the

victim as a witness. The evidence of PW3 also shows that he signed

Exhibit P4 mahazar prepared by the police for the recovery of the dress

of the accused as a witness and he identified his signature in Exhibits P2

to P4 mahazars before the court.

17. PW4 is the sister of the accused and her evidence shows that

the accused is staying in a firewood shed attached to her house and the

victim and her sister are also residing nearby. PW4 stated that the victim

is a mental patient and that the accused is in the habit of consuming

alcohol.

18. The learned counsel for the appellant argued that the evidence

of PWs 1 and 2 regarding the occurrence does not tally and that the

evidence of PW1 is that when he saw the accused and the victim lying in

a naked condition in the firewood shed, he informed the matter to PW2,

who is the sister of the victim and thereafter, they reached the place of

occurrence together. But, in Exhibit P1 First Information Statement of

PW2, it is not seen mentioned that PW2 proceeded to the place of

occurrence on getting information from her neighbour Manoharan and

what is stated is that on 10.11.2015 at about 4 p.m. the victim went to

the nearby rubber estate for collecting firewood and when she failed to

return, the witness went in search of her and when the witness reached

near the house of Devarajan, she heard a noise and when she reached

that place, she saw the accused Devarajan lying on the body of the

victim and on hearing her cries, her neighbour Manoharan reached there

and beat the accused with a twig and thereupon, the accused Devarajan

stood up and left the place.

19. In cross examination, PW2 stated that she saw the incident

after Manoharan informed her about the incident and called her to that

place and when they reached there, the accused Devarajan was lying on

the body of her sister and she told these facts to the police. From the

evidence of PW2 in cross examination, it can be clearly understood that

when her sister, who went for collecting firewoods, failed to return, PW2

went in search of her and she also heard a noise from the shed attached

to the house of the accused Devarajan and at that time, her neighbour

Manoharan also called her and informed her that the accused is lying on

the body of the victim in the nearby shed. It is pertinent to note that

PW2 is an illiterate village woman aged about 73 years and the minor

variations in the sequence of events that occurred on the date of

occurrence are only natural. It is well settled that normal discrepancies

in evidence are those which are due to normal errors of observations and

normal errors of memory due to lapse of time and such discrepancies

and errors will always be there, however honest and truthful a witness

may be. It cannot be disputed that material discrepancies are those

which are not normal and not expected of a normal person.

20. In State of Uttar Pradesh vs. M.K. Anthony [AIR 1983 SC 48],

the Honourable Supreme Court held that minor discrepancies on trivial

matters not touching the core of the case, hypertechnical approach by

taking sentences torn out of context here or there from the evidence,

attaching importance to some technical error committed by the

investigating officer not going to the root of the matter, would not

ordinarily permit rejection of the evidence as a whole. It is well settled

that when a material witness is examined at length, it is possible for him

to make some discrepancies and no true witness can possibly escape

from making some discrepant details.

21. On a careful re-appreciation of the entire evidence of PWs 1

and 2, we find that there is no material discrepancy and that their

evidence regarding the occurrence tallies on all material particulars. The

learned counsel for the appellant invited our attention to the thumb

impression in Exhibit P1 First Information Statement and pointed out

that even though in the beginning portion of Exhibit P1, it is stated that

the said statement is that of PW2, in the concluding portion of Exhibit

P1, the name of the victim is recorded near the thumb impression and in

the absence of a previous statement or complaint from the side of the

victim, there is reason to suspect the identity of the person who

furnished Exhibit P1 First Information Statement.

22. However, the learned Public Prosecutor pointed out that

Exhibit P1 statement of PW2 was recorded by PW13, Woman Civil Police

Officer of Kilimanoor Police Station and PW13 has clarified in chief

examination itself that by mistake, she recorded the name of the victim

instead of the name of PW2 in the concluding portion of Exhibit P1 where

she obtained the thumb impression of PW2. In cross examination, PW13

also clarified that she has read over the statement to the informant after

recording the same and since the informant is illiterate and was not able

to sign the statement, she obtained her thumb impression.

23. It is in evidence that PW2 is an aged rustic village woman and

in view of the evidence of PW13 that it was by mistake she recorded the

name of the victim towards the end of the First Information Statement

given by PW2, we find that the discrepancy in this regard will, in no way,

affect the trustworthiness of the evidence of PW2 before the court

regarding the occurrence.

24. The learned counsel for the appellant argued that there is no

scientific or medical evidence in support of the evidence of PWs 1 and 2

regarding the occurrence. The Assistant Professor of SAT Hospital,

Thiruvananthapuram who examined the victim on 18.11.2015 at 2.15

p.m. was examined as PW6, and the certificate of examination is marked

as Exhibit P6. The evidence of PW6 and Exhibit P6 shows that no

external injuries were noted. According to PW6, she was unable to

communicate with the victim as she was mentally ill and further the

examination was conducted only on 18.11.2015 even though the alleged

occurrence was on 10.11.2015 and therefore, even if there was any

redness, abrasion or contusion on her private parts, it could have

subsided within that time. PW6 further deposed that since the victim is a

married lady, she could not record a specific opinion regarding recent

penetration as the victim was examined after 8 days of the alleged

incident.

25. The evidence of PW14, the then Deputy Superintendent of

Police, Attingal, shows that he took charge of the investigation of this

case only on 23.11.2015. Exhibit P11 FIR and the evidence of PW11, the

then Station House Officer of Kilimanoor Police Station, shows that after

registering the FIR on the basis of Exhibit P1 First Information Statement

on 18.11.2015, she has taken steps for medical examination of the

victim and therefore, it is not in dispute that even though the alleged

occurrence was on 10.11.2015, the medical examination of the victim

was conducted on 18.11.2015.

26. The evidence of PW14 and Exhibit P20 report from the

Forensic Science Laboratory shows that seminal stains are not detected

in the dress of the victim and the accused forwarded as per Exhibit P19,

forwarding note dated 09.02.2016. According to PW14, he recovered the

dress of the victim as per Exhibit P3 mahazar dated 03.12.2015 and the

dress of the accused as per Exhibit P4 mahazar dated 07.01.2016.

Therefore, it can be seen that the seizure of the dress of the victim and

that of the accused are after several days of the occurrence, and in that

circumstance, the absence of medical and scientific evidence cannot be

accepted as a ground to reject the evidence of PWs 1 and 2 regarding

the occurrence.

27. The learned counsel for the appellant argued that the

Investigating Officer ought to have recorded the statement of the victim

and the non compliance of the mandate of Section 154 Cr.P.C and sub-

Section 5A of Section 164 Cr.P.C has caused prejudice to the accused, in

as much as he lost the opportunity to cross examine the victim. But, in

this case, the evidence of PWs 1, 2 and 4 clearly shows that the victim is

a person of unsound mind suffering from mental illness and the said

evidence of PWs 1, 2 and 4 is also supported by the evidence of PW6,

who examined the victim on 18.11.2015 and issued Exhibit P6 medical

certificate. The evidence of PW6 clearly shows that she could not

communicate with the victim as she is mentally ill. The impugned

judgment and the proceedings of the trial court shows that as per the

direction of the trial court, the Superintendent of Mental Health Centre,

Thiruvananthapuram, made arrangements for examining the victim by a

Psychiatrist and the report is marked as Exhibit P5.

28. PW5 was the Junior Consultant in Psychiatry, Mental Health

Centre, Thiruvananthapuram, who examined the victim on 16.12.2017.

PW5 deposed that on his examination, it was found that the victim is

disoriented, non-co-operative and has poor insight and poor judgment .

According to PW5, the victim was showing the symptoms suggestive of

organic psychosis disorder and she has no insight about the court

proceedings and that she needs regular psychiatric treatment. In that

circumstance, we find no reason to disagree with the finding of the court

below that the victim, suffering from mental illness is not a competent

witness under Section 118 of the Indian Evidence Act and we find no

reason to disagree with the said finding and therefore, we also find no

merit in the argument of the learned counsel for the appellant that there

is non-compliance of the mandate of Section 154 and sub-Section 5A of

Section 164 Cr.P.C.

29. In State of Karnataka v. K.Yarappa Reddy [AIR 2000 SC

185], the Hon'ble Supreme Court held thus:-

"it can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise, criminal trial will plummet to the level of the Investigating Officer ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by Investigating Officers. Criminal justice should not be made the casualty for the wrongs committed by the Investigating Officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true the Court is free to act on it albeit Investigating Officer's suspicious role in the case."

30. When the accused was questioned under Section 313

Cr .P.C., he stated that the victim trespassed into his shed and

attempted to steal coconut and its fronds and there occurred a quarrel

in which PW1 intervened and revolted against the accused and his

family members and on the instigation of PW1, Manoharan, PW2,

Sarada, also came to the scene and at that time, PW1 Manoharan

uttered obscene words against the accused and family members and

also threatened the accused that he will not allow him to live

peacefully.

31. DW1 is the witness examined from the side of the defence.

But, her evidence does not tally with the case put forward by the

accused at the time of 313 questioning. According to DW1, she is a

neighbor of the accused. She stated that PW2, Sarada, used to take

twigs and coconuts from the shed of the accused and when the

accused questioned the same, there occurred a quarrel in which PW1,

Manoharan, also intervened and threatened the accused. In cross

examination DW1 stated that she did not know the name of the sister

of PW2 and that she had no acquaintance with her. According to DW1,

police came there to investigate the complaint of PW2 that the accused

caused hurt to PW2. From the evidence of DW1, it is clear that she has

no acquaintance with the victim and her evidence regarding the

alleged quarrel between the accused and PW2 does not tally with the

version of the accused in his 313 statement. Therefore, we find that

the evidence of DW1 is not at all reliable and the same will, in no way,

support the case set up by the defence.

32. We have already found that the evidence of PWs 1 and 2

regarding the occurrence is reliable and trustworthy and there is no

reason for them to falsely implicate the accused in this case. The

evidence of PWs 1 and 2 would show that when they reached the place

of occurrence, the accused was engaged in sexual intercourse with the

victim and therefore, he was unable to notice the presence of PWs 1

and 2 and only when PW2 beat the accused with a twig, the act of

sexual intercourse was intercepted and therefore, the accused had to

leave the victim before completion of the act and emission of semen

and in that circumstance, the absence of seminal stains in the dress as

per Exhibit P20 FSL report cannot be accepted as a ground to

disbelieve the evidence of PWs 1 and 2 regarding the occurrence.

33. In view of the definition of 'rape' in Section 375 IPC, even

partial or slightest penetration of the male organ into the vagina of a

woman with or without emission of semen could constitute rape and

further, clauses 5 and 7 of Section 375 IPC would show that a person

of unsound mind is not capable to give consent and since it is in

evidence that the victim in this case is a person of unsound mind, we

find that the prosecution has succeeded in adducing reliable evidence

to prove that the accused committed rape on the victim as alleged and

therefore, we find that the court below has rightly convicted the

accused for the offence under Section 376 (2)(j) of IPC.

34. On a careful re-appreciation of the entire evidence and

considering the nature, gravity and the circumstances of the

commission of the offence, we also find no reason to interfere with the

sentence imposed on the appellant/accused and therefore, we find that

this appeal is devoid of any merit and is liable to be dismissed.

In the result, this appeal is dismissed.

sd/-

P.B. SURESH KUMAR, JUDGE.

sd/-

JOHNSON JOHN, JUDGE.

Rv