Kerala High Court
Muhammed Kunju vs The Inspector Of Police on 18 February, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.A.No. 1536 of 2018 1 2025:KER:13086
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
CRL.A NO. 1536 OF 2018
AGAINST THE JUDGMENT DATED 29.11.2018 IN SC NO.652 OF 2013 OF
ADDITIONAL SESSIONS COURT-I, ALAPPUZHA (SPECIAL COURT FOR TRIAL
OF OFFENCES UNDER POCSO ACT & CHILDREN'S COURT, ALAPPUZHA)
APPELLANT/ACCUSED:
MUHAMMED KUNJU,
AGED 54 YEARS
S/O YUSU KUNJU, PUNNAKUZHIYIL HOUSE, THEKKUKOCHU MURI,
KRISHNAPURAM VILLAGE, ALAPPUZHA DISTRICT.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.V.C.SARATH
SRI.M.REVIKRISHNAN
SRI.AJEESH K.SASI
SRI.VIPIN NARAYAN
SMT.POOJA PANKAJ
SRUTHY N. BHAT
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RESPONDENT/COMPLAINANT/STATE:
1 THE INSPECTOR OF POLICE,
KAYAMKULAM, ALAPPUZHA DISTRICT-688012.
2 STATE OF KERALA,
(RESPONDENTS 1 AND 2 REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
BY RENJITH T.R, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
18.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Raja Vijayaraghavan, J.
The above appeal is directed against the judgment dated 29.11.2018 in S.C.
No.652 of 2013 on the file of the Additional Sessions Court-I, Alappuzha (Special
Court for Trial of Offences under POCSO Act & Children's Court, Alappuzha).
2. In the aforesaid case, the appellant, a 48-year-old male, was charged for
having committed the offences punishable under Sections 450 and 376(1) of the
Indian Penal Code. By the impugned judgment, the appellant was sentenced to
undergo:
a) Rigorous Imprisonment for seven (7) years and to pay a fine of
Rs.1,00,000/-, with a default clause for the offence under Section 450 of
the IPC.
b) Imprisonment for life and to pay a fine of Rs.3,00,000/- with a default
clause for the offence under Section 376(1) of the IPC.
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Brief Statement of Facts
3. The prosecution allegation is that the appellant trespassed into the
house bearing door No.XII/349, Krishnapuram Grama Panchayat, at about 11:00
a.m. on 05.03.2012 and subjected the survivor to penetrative sexual abuse.
Registration of Crime and Investigation
4. It was based on a statement furnished by the child to the ASI of
Police, Kayamkulam Police Station, on 24.03.2012 that Crime No. 384 of 2012 of the
Kayamkulam Police Station was registered. In the FI Statement, it was stated that
she was subjected to sexual abuse about three months prior to the registration of
the crime.
5. The investigation of the case was conducted by PW6 (Shanihan), the
Inspector of Police, Kayamkulam Police Station. He prepared Ext.P5 Scene Mahazar
on 25.03.2012. The clothes alleged to have been worn by the survivor were seized
and marked as MO1 (Maxi). On the same day itself, at about 12 noon, the accused
was arrested as per Ext.P7 Arrest Memo. Based on the disclosure statement made by
him, MO2 (Kaily), MO3 (Shirt), and MO4 (underwear) allegedly worn by the accused
at the time of occurrence were seized as per Ext.P10 Seizure Mahazar. The accused
was produced before the Medical Officer and Ext.P3 Potency Certificate was
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obtained. The survivor was produced before the Medical Officer attached to the T.D.
Medical College Hospital, Alappuzha, and Ext.P4 Medical Report was obtained.
Ext.P13 is the Scene Plan which was obtained from CW13 local Village Officer. Ext.
P14 Certificate, showing the date of birth of the survivor was obtained from CW15
Headmistress showing the date of birth of PW1. Thereafter, the investigation was
handed over to PW7 (T.Rajappan), who conducted the investigation and laid the final
report before the Court.
6. Committal proceedings were initiated by the learned Magistrate in
accordance with the law, and the case was committed to the Court of Session,
Alappuzha. After hearing the prosecution and the accused, charges were framed
under Sections 450 and 376(1) of the Indian Penal Code. When the same was read
over, he pleaded not guilty and that he be tried in accordance with the law.
Evidence Tendered
7. To prove the case of the prosecution, 7 witnesses were examined as
PWs 1 to 7 and through them, Exts.P1 to P20 were exhibited and marked. MOs 1
to 4 were produced and identified. After the close of prosecution evidence, the
incriminating materials arising from the prosecution evidence were put to the
accused under Section 313 of the Cr.P.C. The accused denied the incriminating
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circumstances and maintained that he was innocent. He stated that he was
initially summoned to the Police Station but was allowed to go back. Later, he was
arrested. He stated that PW1 is a sick child and she has the habit of levelling false
accusations. He stated that he also had a mentally retarded child at home. No
evidence was adduced by the defence.
Findings of the learned Sessions Judge:
8. The learned Sessions Judge, after evaluating the entire evidence,
came to the conclusion that PW1 was a sterling witness whose evidence could be
relied upon without any corroboration. The failure of the doctor to note any injury
on examination of the victim was justified by relying on the opinion of the doctor
that if there is no complete penetration, there is no chance for rupture of the
hymen. The learned Sessions Judge relying on the evidence of PWs 1, 3 to 7, and
in light of the medical evidence, came to the conclusion that the prosecution has
established that the appellant had trespassed into the dwelling house of the
survivor with the intent to commit rape and that she was subjected to penetrative
sexual abuse. Holding so, the finding of guilt was arrived at by the learned
Sessions Judge.
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Contentions of the appellant
9. Sri P. Vijayabhanu, the learned Senior Counsel, assisted by Smt.
Sruthy K.K., the learned counsel, appearing for the appellant, submitted that the
learned Sessions Judge committed a grave error in relying on the solitary
evidence of PW1 to arrive at a finding of guilt. He urged that the records reveal
that PW1 was a child with mental retardation, the extent of which was not
assessed. A perusal of the medical examination reports would reveal that while
being examined by the doctors, the victim was accompanied by her aunt. He
asserted that the version of the victim before the court was inconsistent with her
previous versions and against the medical examination report. Though the victim
was 21 years old when she was examined before the court, the Court failed to
assess her competency to testify by asking appropriate questions as mandated
under Section 118 of the Indian Evidence Act, 1872. By ignoring all
inconsistencies in her evidence on the premise that the victim is a sick girl,
serious prejudice has been caused to the accused. It is contended that while it
cannot be doubted that rape causes immense distress and humiliation to the
victim, a false allegation of rape can inflict equal harm and damage upon the
accused as well. He emphasized the paramount importance of protecting the
accused from wrongful implication by careful evaluation of the evidence. This
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aspect coupled with the total absence of injuries would suggest that no incident
of the nature alleged had in fact taken place. It is submitted that the learned
Sessions Judge ought to have looked for corroboration of the statement of the
victim and should not have acted on the testimony of the victim alone to arrive at
the finding of guilt. We were taken to the statement of witnesses as well as the
prosecution records and it is urged that the embellishments, discrepancies and
variations in the evidence of PW1 would lead to the unmistakable conclusion that
the appellant was falsely implicated. The defence was also seriously prejudiced as
the officer who recorded the statement of the victim was not examined before
court thus depriving the accused from proving the omissions and contradictions.
The learned Senior Counsel submitted that the learned Sessions Judge was
swayed by the fact that the survivor was a mentally retarded child and the finding
of guilt was arrived at without insisting upon the prosecution to prove at least the
foundational facts.
Submissions of the learned Public Prosecutor
10. Sri. Renjith T.R., the learned Public Prosecutor, refuted the
submissions of the learned Senior counsel. He urged that the evidence of the
prosecutrix, as well as the other evidence available, was carefully appreciated by
the learned Sessions Judge to arrive at the guilt of the accused. He would point
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out that the medical evidence clearly reveals that in the case of one single
instance of rape, if the hymen is elastic, there won't be any tell-tale signs or
injuries.
11. We have considered the submissions advanced and have perused
the entire records. We have carefully gone through the judgment impugned.
Evidence let in by the prosecution:
12. PW1 is the survivor. At the time of examining before the Court, she
was 21 years of age. She stated in her evidence that she had studied up to the
VII Standard and at the time of tendering evidence had been residing at 'Gandhi
Bhavan', Pathanapuram. According to her, at the time of the incident, she had
been residing with her father, mother, paternal grandmother and younger sisters.
The accused used to come to her home often and consume alcohol with her
father. She stated that the accused did her only once without specifically
mentioning what he did. Immediately thereafter, she fell ill and disclosed the
incident to her mother after a month. She stated that when the accused came to
her home, there was no one else. The accused took off her maxi while she was
sleeping in one of the rooms. When asked further, she stated that the accused
applied something on her private part and thereafter inserted something.
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According to her, she is still unaware as to what was inserted by the accused. She
then became unconscious and could not recollect what had happened when she
later woke up. She identified the accused who was standing on the dock. She
stated that her mother used to beat her without any reason and that is the
reason why she went to stay at Gandhibhavan. She stated that her father is an
alcoholic. There was no one at home to look after her affairs. She stated that the
information was furnished to the police while she was in the hospital. When asked
whether she had previous acquaintance with the accused, she denied the same.
Later, she said that the accused used to come home frequently. She said she used
to be angry with her parents. When asked whether the accused had taken her
somewhere she said she did not remember. She stated that the accused
approached her while she was sleeping and she is not aware of what had
transpired thereafter. Later, it was brought out that on the alleged day of the
incident, her father and paternal grandmother were present at home. Though an
attempt was made to bring about certain omissions and contradictions, it could
not be proved since CW18, the officer who recorded her statement was not
examined.
13. PW2 is one Rejila Beevi. She stated that she was an immediate
neighbour of both the accused and the survivor. However, she denied having
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information or knowledge about the alleged incident.
14. PW3 is Dr. Sajeeb Muhammad, who stated that he was working as a
Consultant in Medicine at Govt. Hospital, Kayamkulam. He examined the PW1
(survivor) on 24.03.2012 and issued Ext.P2 certificate. According to him, the
history was stated by one Lailath, the aunt of the survivor. All that was stated was
that she had been having Amenorrhea for two months and that there was a
history of sexual contact with one person, 2-3 times about two months back. In
cross-examination, he stated that he had not conducted any physical examination
of the survivor.
15. PW4 is Dr. Asish. B, Assistant Surgeon working at the Govt. Hospital,
Kayamkulam. He conducted a potency test of the accused and issued Ext.P3
Potency Certificate.
16. PW5, Dr. Anita Carmel, Lecturer at the Government T.D. Medical
College, Alappuzha, stated that on 24.03.2012 at 6.40 pm, she examined the
survivor and issued Ext.P4, the medical examination report. According to her, the
hymen of the survivor was intact, and no injuries were observed. In response to a
pointed question posed by the learned Public Prosecutor, she clarified that if the
hymen is elastic in nature, in a single instance of intercourse, if there is no deep
Crl.A.No. 1536 of 2018 12 2025:KER:13086
penetration, the hymen may not rupture. Furthermore, she stated that in Column
No.10 of Ext.P4, the survivor had narrated that the assault had occurred
approximately one week prior. When confronted with the question that, given the
time-lapse of about a week, there ought to have been visible injuries to the
hymen, she reiterated that unless there is deep penetration, the likelihood of any
injuries being present is minimal.
17. PW6 (Shanihan) is the Officer who conducted the investigation and
PW7 (T. Rajappan) is the Officer who filed the final report.
Analysis:
18. As is revealed from the judgment of the learned Sessions Judge, the
finding of guilt has been arrived at based on the solitary evidence of the victim.
19. One of the contentions raised by the learned counsel for the
appellant is that the learned Sessions Judge has erred in not conducting a
preliminary examination as regards the competency of PW1 and her ability to
state the truth. We shall deal with the said contention first.
Section 118 of the Indian Evidence Act reads thus:
"Section 118. Who may testify.--- All persons shall be competent to
testify unless the Court considers that they are prevented from understanding
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the questions put to them, or from giving rational answers to those questions,
by tender years, extreme old age, disease, whether of body or mind, or any
other cause of the same kind.
Explanation.-- A lunatic is not incompetent to testify, unless he is
prevented by his lunacy from understanding the questions put to him and
giving rational answers to them.
20. Section 118 of the Indian Evidence Act says that all persons shall be
competent to testify unless the Court considers that they are prevented from
understanding the questions put to them or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or mind,
or any other cause of the same kind. The Explanation to Section 118 of the
Evidence Act clarifies that a lunatic is not competent to testify unless he is
prevented by his lunacy from understanding the questions put to him and giving
rational answers to them. In short, the competency of a person to give evidence
in a proceeding is to be assessed by the court by considering the question as to
whether the person is prevented from understanding the questions put to him or
from giving rational answers to those questions, because of tender years, extreme
old age, disease, whether of body or mind, or any other cause of the same kind.
In spite of the fact that there were overwhelming records to substantiate that the
victim was a person suffering from mental retardation, learned Sessions Judge did
not resort to any examination to ascertain her capacity to give rational answers to
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the questions put to her.
21. While evaluating the evidence of PW1, we find that there are serious
inconsistencies in her version before the court. Though she stated in the FI
statement that the incident happened about 3 months prior to her lodging the FI
statement on 24.3.2012, when she was examined before Court she said that she
divulged the incident a month after the incident. Insofar as the narration of the
incident is concerned, her version is inconsistent. She had asserted in her version
that the accused did something to her only once. At one stage, she stated that
there was no one at home and she was sleeping when the accused came. Later,
she said that her father and grandmother were at home but her mother had gone
to get water. In Ext.P4 also, it is stated that her aged grandmother was at home
when the accused committed the offensive act. She admitted that there were only
two rooms in the house. There is yet another matter. We notice that in the FI
statement, the survivor has given an elaborate account of what had transpired
about a month back. However, while tendering evidence, all that she stated was
that some cream was applied to her genitals and thereafter the accused inserted
something, without mentioning what was inserted. It is also discernible that the
victim was accompanied by her aunt when she was examined by the doctor and
also when her statement was recorded. The said aunt was not even cited as a
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witness in the charge sheet.
22. There are also serious incongruities in the evidence tendered by the
prosecution in the light of the medical evidence. The victim was seen by PW5 on
24.3.2012 and he issued Ext.P4 certificate. The aunt of the victim accompanied
her and the history was narrated by the aunt. It is seen from the certificate that
the doctor was informed that the victim was abused a week prior to the
examination. No external injuries or bruises were however noted by the doctor.
On examination, the doctor noted that the victim was 14 years old and the hymen
was intact. The doctor noted that Amenorrhea had happened one year back and
that her last menstrual period was on 24.2.2012. While tendering evidence, the
absence of injuries was explained by the doctor by stating that if the hymen is
elastic in nature, and the sexual assault was only on one instance, the hymen will
not rupture unless there is deep penetration. However, this explanation cannot be
accepted in the light of the evidence let in by the prosecution by examining PW3
Dr. Sajeeb Muhammad, of the Govt. Hospital, Kayamkulam, who had seen the
victim at the initial stage. To the said doctor, it was stated that the victim had a
history of sexual contact with one person, two or three times about two months
back. If that be the case, it was not a case of a single instance but multiple
instances and necessarily there ought to have been injuries on the private parts
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of the victim.
23. It is also worth noting that the incident in this case is alleged to
have occurred on 5.3.2012 and therefore prior to the substitution of Section 375
by the Criminal Law (Amendment) Act of 2013 with effect from 3-2-2013. Prior to
substitution Section 375 read as under:
S. 375. Rape.--A man is said to commit "rape" who, except in the
case hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:--
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--With her consent, when her consent has been obtained by
putting her or any person in whom she is interested in fear of death or of
hurt.
Fourthly.--With her consent, when the man knows that he is not her
husband, and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married.
Fifthly.--With her consent, when, at the time of giving such consent,
by reason of unsoundness of mind or intoxication or the administration by
him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of that
to which she gives consent.
Sixthly.--With or without her consent, when she is under sixteen
years of age.
Explanation.--Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception.--Sexual intercourse by a man with his own wife, the wife
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not being under fifteen years of age, is not rape.
A careful evaluation of the evidence reveals that the victim in her evidence
has not stated that the appellant had committed sexual intercourse or any act
which would attract Section 375 of the IPC.
24. In view of the above inconsistencies, the learned Sessions Judge
was required to evaluate the testimony of PW1 with utmost caution and ought to
have looked for corroboration from other reliable sources. This is particularly
because as we had held earlier, the medical evidence is clearly at variance with
her version. While assessing the evidence of PW1, the Sessions Judge ought to
have borne in mind that deeper scrutiny had to be made to determine whether
her testimony is coherent and reliable, that her demeanour was like any other
competent witness and that there is no likelihood of her being tutored. Though
this principle is more a rule of practical wisdom than a strict legal mandate, it
would have been both prudent and judicious for the learned Sessions Judge to
adhere to it. It is in this context that the submission of the learned Senior Counsel
assumes significance. According to him, if the prosecution were to rely on the
victim's version in the First Information Statement as well as the information
provided to PW3, then the explanation given by PW5 for the absence of injuries
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would have gone against the same. There appears to be merit in the submission
of the learned Senior Counsel appearing for the appellant that it was in order to
justify the absence of injuries, that the victim was made to dilute her version
before the court. As held in Ganesan v. State1, there can be a conviction on
the sole testimony of the victim/prosecutrix only if the same is found to be
trustworthy, unblemished, credible and of sterling quality.
25. While trying an accused on the charge of rape, the Courts
necessarily are to deal with the case with the utmost sensitivity and by examining
the broader probabilities of the case. They shall not be swayed by minor
contradictions or insignificant discrepancies in the evidence of the victim which
are not substantial. At the same time, even in a case of rape, the onus is always
on the prosecution to prove, affirmatively each ingredient of the offence it seeks
to establish and such onus never shifts. It is not part of the duty of the defence to
explain how and why in a rape case the victim and other witnesses have falsely
implicated the accused. The prosecution case has to stand on its own legs and
cannot take support from the weakness of the case of defence. However, great
the suspicion against the accused and the strong moral belief and conviction of
the court is, unless the offence of the accused is established beyond a reasonable
[(2020) 10 SCC 573]
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doubt on the basis of legal evidence and material on record, he cannot be
convicted for an offence. There is an initial presumption of innocence of the
accused and the prosecution has to bring home the offence against the accused
by reliable evidence. The accused is entitled to the benefit of every reasonable
doubt (See Tukaram and Another v. State of Maharashtra2 and Uday v.
State Of Karnataka3).
Conclusion:
26. In the present case, we are not in a position to accept the version of
the prosecutrix at face value and base our conviction solely on it. When the
primary facts that the prosecution is duty-bound to establish are found to be
inconsistent, the benefit of the doubt must necessarily be extended to the
accused. While it is well settled that in cases of rape, the statement of the
prosecutrix is to be given due weightage, it is equally true that the fundamental
principle of criminal jurisprudence-- that the prosecution must prove its case
beyond a reasonable doubt-- applies with equal force in cases of rape. There can
be no presumption that a prosecutrix will always narrate the entire incident
truthfully, nor is there any basis to assume that her statement is invariably
accurate or free from embellishment or exaggeration. On an overall evaluation of
[(1979) 2 SCC 143]
[(2003) 4 SCC 46],
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the evidence, the version projected by the prosecutrix appears wholly improbable.
In light of the foregoing discussion, we are of the considered view that the
prosecution has failed to establish the commission of offences under Sections 450
and 376(1) of the Indian Penal Code against the appellant.
Resultantly, this appeal will stand allowed. The finding of guilt, conviction,
and sentence passed against the appellant under 450 and 376(1) of the Indian
Penal Code in S.C. No.652 of 2013 on the file of the Additional Sessions Court-I,
Alappuzha (Special Court for Trial of Offences under POCSO Act & Children's
Court, Alappuzha) is set aside, and he is acquitted of all charges. The
appellant/accused be set at liberty forthwith if his continued incarceration is not
required in connection with any other case.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
P.V. BALAKRISHNAN,
JUDGE
PS/APM/18/2/25
