Kerala High Court
Chackochan vs State Of Kerala on 24 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
CRL.A NO. 423 OF 2014
AGAINST THE JUDGMENT DATED 30.04.2014 IN SC NO.602 OF
2011 ON THE FILE OF THE COURT OF SESSION, ERNAKULAM.
APPELLANT/ACCUSED:
CHAKOCHAN,
AGED 53 YEARS,
S/O.DEVASSY,
MANAVALAN VEETTIL, KODUSSERY KARAYIL,
PARAKADAVU VILLAGE, ALUVA TALUK, ERNAKULAM.
BY ADVS.
SRI.GEO PAUL
SRI.S.ASHOK KUMAR.
SRI.S.ABHILASH VISHNU
SRI.C.R.PRAMOD
SRI.R.VINU RAJ
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, THROUGH CIRCLE INSPECTOR,
ANGAMALY POLICE, ERNAKULAM DISTRICT. PIN-682 031.
*ADDL R2 HARI,
AGED 54 YEARS,
S/O. AYYAPPAN, VELIYATHUPARAMBIL, KODUSSERY KARA,
PARAKKADAVU VILLAGE,
ALUVA, ERNAKULAM DISTRICT
*(IMPLEADED AS PER ORDER DATED 14.01.2025 IN
CRL.MA.1/2018 IN CRL.A.423/2014)
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BY ADV SANDHYA RAJU
SRI.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11.02.2025, THE COURT ON 24.02.2025 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
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Criminal Appeal No.423 of 2014
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Dated this the 24th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, the sole accused in S.C.No.602 of 2011 on the file of the
Court of Session, Ernakulam, challenges the conviction entered and
sentence passed against him for the offence punishable under
Section 376 IPC.
2. The prosecution case as revealed from the final
report/charge sheet filed before the trial court on 31/07/2011 is as
follows:- The accused during the past one year has been molesting
PW1, his neighbour a 16 year old girl, who is intellectually disabled
(മ നസ കമ യ പ പ ക റവ ള) several times inside her house bearing
no.V/104, Parakkadavu Panchayath, Kodussery, Parakkadavu
Village. On 30/12/2010 at 10:00 a.m. he raped her inside the
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southern room of her house. He raped her several times thereafter
also. Hence, as per the final report, the accused is alleged to have
committed the offence punishable under Section 376 IPC.
3. Crime no.735/2011, that is, Ext.P11 FIR was
registered by PW14, Sub Inspector, Angamaly Police Station based
on Ext.P1 FIS given by PW4, the paternal uncle of PW1. The
investigation was conducted by PW15, the Sub Inspector,
Angamaly Police Station, who on completion of investigation
submitted the final report before the jurisdictional magistrate
alleging the commission of the offence punishable under the
aforementioned Section by the accused.
4. On appearance of the accused, the jurisdictional
magistrate after complying with all the necessary formalities
contemplated under Section 209 Cr.P.C., committed the case to the
Court of Session, Ernakulam. The case was taken on file as
S.C.No.602/2011 and thereafter made over to the Additional
District and Sessions Judge, Ernakulam, the designated court for
Trial of Cases Relating to Atrocities and Sexual Violence Against
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Women and Children, for trial and disposal. On 06/02/2013, the
trial court framed a charge for the offence punishable under Section
376 IPC, which was read over and explained to the accused to
which he pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW17 were
examined and Exts.P1 to P19 and M.O.1 series were marked on the
side of the prosecution. PW1 and PW3 were thereafter recalled on
the request of the prosecution and Exts.P19 and P18 marked. After
the close of the prosecution evidence, the accused was questioned
under Section 313(1)(b) Cr.P.C. regarding the incriminating
circumstances appearing against him in the evidence of the
prosecution. The accused denied all those circumstances and
maintained his innocence. He also gave a statement in writing
explaining his stand. According to him he has two grown-up
daughters. He is not involved in any crime till date. PW1 his
neighbour has mental problems and infirmities from the time she
was studying in high school. She is in the habit of imagining things.
She is quite fearful in nature. She entertains the feeling that the soul
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of dead people possesses her. Several poojas were conducted in her
house for her treatment. The story that the accused had sexually
abused her is only a figment of her imagination. PW1 is like a
daughter to him. He is on inimical terms with PW5 and the other
relatives of PW1. Therefore, after the demise of PW1's father, the
said relatives have fabricated a case using PW1 and PW3.
6. As the trial court did not find it 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
impugned judgment it is seen that though the accused initially stated
that he wanted to examine witnesses thereafter, no witnesses were
produced. It was at this stage the trial court summoned and
examined the Registrar of Births and Deaths, Thrissur Corporation
as CW1 to prove Ext.C1, the extract of the birth register. Thereafter,
the evidence was closed and both parties were heard.
7. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found the accused guilty of the offence
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punishable under Section 376(1) IPC and hence sentenced him
under Section 235(2) Cr.P.C. to rigorous imprisonment for a period
of ten years and to a fine of ₹25,000/- and in default to rigorous
imprisonment for one year. Set off under Section 428 Cr.P.C. has
also been allowed. Out of the fine amount, if realized, ₹20,000/- has
been directed to be paid as compensation to PW1 under Section
357(1)(b) Cr.P.C. Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in this
appeal is whether the conviction entered, and sentence passed
against the accused/appellant by the trial court are sustainable or
not.
9. Heard both sides.
10. Before I go into the arguments advanced, I shall
briefly refer to the evidence on record relied on by the prosecution
to prove the case. Ext.P1 FIS was given by PW4, the paternal uncle
of PW1 to PW14, the Sub Inspector, Angamaly Police Station.
Ext.P1 was recorded on 16/05/2011 at 10:30 a.m. at which time
PW1 was also present in the police station. In Ext.P1 FIS PW4
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states that on several days in the past two weeks, the accused had
tried to rape PW1. Two weeks back, he noticed an
abnormal/unusual change in the behaviour of PW1. He enquired
about the matter with PW1, who burst into uncontrollable tears.
PW1 also showed signs of mental disorder ( മ നസ ക വ പഭ ന ). So,
he took PW1 along with PW3 her mother, to Ernakulam for
counselling. During the course of counselling, it was revealed that
the accused had attempted to sexually abuse PW1 several times.
PW1 is still not normal. She is undergoing treatment. Two weeks
back PW1 was quite active. For the last two weeks she has been
showing signs of mental disorder (മ നസ ക വ പഭ ന ). PW3 goes out
for work at which time PW1 would be alone at home. Taking
advantage of the situation, the accused tried to rape her. The
incident happened inside the house of PW1. PW4 in Ext.P1 also
stated that the incident of sexual abuse started two weeks back.
10.1. PW4 in the box stands by his version in Ext.P1 FIS.
He deposed that PW1 was mentally upset and hence the reason for
the delay in giving the complaint to the police. They were all
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worried about her future, which also caused the delay. In the cross
examination he deposed that before he gave Ext.P1, he never knew
that the accused had raped PW1. He realised the same after PW1
was medically examined. PW1 was treated at the Psychiatric
department of the Medical College, Thrissur. She regained
normalcy only after treatment. PW4 was asked whether PW1 had
such mental issues earlier, to which he answered in the negative.
[ധന ക മ ൻ മ നസ ക ന ല ത റ യ സ ഭവ ഉണ യ ട ണണ ? (Q). മ ൻ ഈ
ന ലയക ഉണ യ ട ല (A)].
10.2. PW1, the victim, deposed that the accused, her
neighbour used to always trouble her. On 30/12/2010 while she
was at home, somebody rang the calling bell. When she opened the
door, it was the accused who was standing outside. She closed the
door. The accused forcibly opened the door and came inside. He
grasped her breast, closed her mouth, bit her lips and kissed her.
The accused forcibly took her to the room on the south, undressed
her and had intercourse with her. She felt pain in her breast and
genital area. She further deposed that the accused had committed
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penetrative sexual assault. Thereafter he left her house. The
accused had done the aforesaid acts several times from the time she
was in the Vth Std. After 30/12/2010, the accused again repeated the
act about two to three times. After the last incident, she revealed the
same to her mother. She did not disclose the abuse to her mother
earlier due to fear. After the last incident of rape, the next day her
mother finding her crying, enquired the matter. It was then that she
had disclosed the incident to her mother. She was taken for
counselling to PW2. PW1 identified PW2 who was present in court
during her examination. She gave a statement to the police. She
was taken to the hospital at Thrissur and thereafter to a hospital at
Ernakulam. She became mentally ill because of the sexual abuse of
the accused. She is presently under treatment. PW1 in the cross
examination deposed that before giving statement to the police, she
was not under treatment for mental illness. According to her, she
had mental issues two years after the demise of her father. Before
she went to the police station, she had a similar problem earlier, at
which time she used to get the feeling that she was going to die.
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She used to feel that strangers were coming to her home. When she
had mental issues she used to feel that somebody was following her
even when she saw a shadow. She also used to feel that the villain
characters in the movies and serials, which she watched on TV,
were coming near her and troubling her while she was alone during
nights. When it was suggested to her that it was her imagination
that the accused had abused her, PW1 answered in the negative and
started crying.
10.3. PW2, former Head, Department of Science,
Chinmaya Vidyalaya, Vaduthala, B.Sc Honors and M.Sc. M.Ed.,
deposed that he has 40 years of teaching experience. As part of
teaching, he also conducts counselling. It was on the
recommendation of one of his friends he had met PW1. As a teacher
he had counselled PW1 also. PW1 after the death of her father
harboured a feeling that she would die. She had difficulty in
studying and hence the reason why she was brought to him for
counselling, which lasted for three hours. PW1 took considerable
time to open up and start talking. During counselling PW1
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repeatedly asked him whether she would die. To a question by the
Court as to whether PW1 had revealed to him about any sexual
abuse, PW2 answered in the negative. PW1 was accompanied by
her sister who was pursuing her nursing course. Her sister told him
that somebody had groped the victim. He immediately stopped the
counselling and advised her sister to take PW1 to a doctor as he was
not competent to do any further counselling. (ക ട യ ത# ക$ത# അ ത&
Nursing ന ഠ ക ന ണ)ച ഉണ യ ര ന . കയറ #ച എതന തക
റഞണ. ൾ ഞ നവ ത# ന ർത . ണ)ച ണയ # ഇന എന ക
ത)യ ൻ റ നസ ഗ അല , എതന തകയ ണ ണവണ 9 റ
എന ണ7 കത
കണ ണ) ദ ക ൻ റഞ . )
10.4. PW3, the mother of the victim, deposed that on
seeing her daughter crying, she enquired the matter and then her
daughter told her that the accused had abused her. PW1 was then
taken for counselling.
10.5. PW9, Headmistress, Government Higher
Secondary School, Puliyinam deposed that she had issued Ext.P6
certificate relating to the date of birth of the victim and as per the
certificate the date of birth is 25/02/1995.
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10.6. PW10, Additional Professor, Department of
Obstetrics and Gynecology, Government Medical College, Thrissur,
deposed that on 23/05/2011 at 03:15 p.m. she had examined PW1,
16 years, as per the request of the police. She was brought to the
hospital by her mother and a police constable with a history of
sexual intercourse by Chacko, her neighbour (the accused) several
times for the past one year while she was alone at home. She
disclosed the matter to her mother on 07/05/2011. The victim
showed some abnormal behaviour, and so psychiatric consultation
was done. The girl was on drugs. Upon examination she found the
victim to be drowsy. No external injuries were seen. Hymen was
found torn. No fresh bleeding was found. The posterior fourchette
was found congested and inflamed. Vagina admitted one finger and
it was loose; there was a discharge and as the patient was drowsy,
she sent her to the psychiatrist for evaluation. According to PW10,
the examination of the victim was consistent with the history of
sexual intercourse.
10.7. PW12, Assistant Professor, Psychiatry,
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Government Medical College, Thrissur deposed that as directed by
the Court he has produced the case records of the patient, that is
PW1, who was brought to the hospital on 07/06/2011 by her mother
and paternal uncle with a history of behaviour problems for the past
one month. The symptoms were decreased sleep and appetite. There
was decreased talk, and the victim was crying and expressing fear
and frequently asking whether she would die. She was exhibiting
clinging behaviour towards her mother. There was a history of
sexual abuse by her neighbour. There was no history of psychiatric
illness. She had a disability certificate from the District Medical
Board, Ernakulam dated 13/08/2010 stating that she has mental
retardation with 50% disability. On admission her diagnosis was
severe depressive episode, and she was treated with ante
depressants. During her stay in the hospital, she showed irritable
behaviour and therefore, the diagnosis was changed to mixed
effective episodes. She was discharged on 26/03/2011. The
certified copy of the case records of PW1 was marked as Ext.P10.
In the cross-examination, PW12 deposed that PW1 was not on
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psychiatric drugs when she came to him for the first time. No
treatment records were brought when PW1 came to him. There was
only the report regarding the gynecological examination. She was
admitted in the hospital from 07/06/2011 to 23/06/2011. In Ext.P10
it has been noted that there was no history of psychiatric illness or
treatment. The patient thereafter was on regular follow-up and her
treatment continues. PW12 answered in the affirmative when he
was asked whether it was possible to have ejaculation or orgasm in
a person who is dreaming. To a question that in auditory or visual
hallucination, strange thoughts of feelings are characteristics of
degeneration of thoughts, he answered that it is only a thought and
perception abnormality. To a question whether there is a class of
mentally ill people who have false perception and inaccuracies that
affect senses and cause them to hear, see, taste, touch or smell what
others do not feel, answered in the affirmative. To the question of
whether delusions are false beliefs or misinterpretation of events
and their significance, PW12 answered that it is not so, and that
delusions are false, firm and fixed unshakable beliefs which cannot
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be explained by the social, cultural and educational background of
an individual. A person having a delusion will have a feeling that it
is real and would not correct it. To a question whether a false
feeling that a person has been possessed; a false feeling that a
person is going to die; a false feeling that some persons are coming
to his or her house; a false feeling of a shadow being a person
stalling or following ; a false feeling that villains in movies or T.V.
serials are approaching and disturbing that person are presumably
the outcome of a defective thought process, answered that there are
thousands of such symptoms. When the question was repeated
PW12 answered that it may be so. In the re-examination, PW12
deposed that as per Ext.P10 he had treated the patient only for
severe depression. On the date of admission, the diagnosis was that
she was under severe depression and later the diagnosis was
changed to mixed effective episode, which is mixed mood like
depressive and irritable symptoms. In the further cross-examination
PW12 was asked whether it is difficult to identify the symptoms of
psychiatric illness in an intellectually disabled person unless
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extreme care and attention is shown, answered that a physician may
find it difficult to identify change in behaviour as typical symptoms
are common in intellectual disability cases, but it is very easy for
parents to detect/notice change in behaviour as they have known the
patient for long. To a further question whether the symptoms of
mental illness in an intellectually disabled person are often
misunderstood by layman as symptoms of intellectual disability,
answered that it may be so.
10.8. PW14 deposed that when Ext.P1 FIS was given,
PW4 never stated to him that PW1 had been raped.
10.9. PW17, Consultant Psychiatrist, General Hospital,
Ernakulam deposed that he was a member of the Medical Board,
which issued Ext.P18 certificate, which bears his signature also. As
per Ext.P18 the patient (PW1) had 50% mental retardation which
comes under the moderate category. She could distinguish people as
well as communicate about what had happened to her. In the cross-
examination PW17 deposed that Ext.P18 is a conclusive test report
containing the conclusions and findings and that it does not mention
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about the test(s) conducted or the medial records that were perused.
PW17 denied the suggestion that the observations in Ext.P18 are
incorrect and that it was issued only for the purpose of obtaining
benefits from the Government.
10.10. CW1, Registrar, Births and Deaths, Thrissur
Corporation produced the birth register of the year 1994. Page
no.24 of the Register refers to the birth of a girl child on
11/11/1994. The names and addresses given in Ext.C1 correspond
to the name and address of the parents of PW1. The child was born
in a private hospital. The birth was registered on 18/11/1994. The
attested copy of the relevant page of the register has been marked as
Ext.C1.
11. It was quite persuasively argued by the learned
counsel for the accused/appellant that PW1, the alleged victim, is an
incompetent witness. The trial court before embarking on the
examination of PW1, never tested her capacity to depose or ability
to give rational answers. According to the learned counsel, though
no particular procedure is prescribed in the Criminal Procedure
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Code to test the competence of a witness unlike in the case of an
accused who is unsound, the trial courts must adopt some procedure
like the one contemplated under Section 328 Cr.P.C., if not, serious
prejudice would be caused to the accused. In the case on hand, the
trial court gave the benefit of the intellectual disability of PW1 to
get over the defects in the prosecution case but does not give the
same benefit to the accused who has been falsely implicated in this
case. The incompetence of PW1 to depose ought to have gone in
favour of the accused and ended in an acquittal of the accused.
However, the trial court on a total misappreciation of the law and
evidence has grossly erred and arrived at the guilt of the accused
based on the faulty or highly unreliable testimony of PW1, goes the
argument.
11.1. Per contra, it was pointed out by the learned
Public Prosecutor that Section 328 Cr.P.C. is not applicable to the
facts of the case and that it is applicable only in the case of accused
persons of unsound mind. It was also pointed out that the
competence of a witness can be assessed by the trial court from the
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answers given by the witness to the questions put to her in the chief
and cross examination.
12. PW1 even as per the final report/charge sheet is
stated to be intellectually disabled. What is the extent of her
disability has been brought out in Ext.P18 and in the testimony of
PW17. As per Ext.P18, a disability certificate for physically
handicapped person dated 13/08/2010 issued by the Board members
consisting of an Orthopedist, a Psychiatrist, a ENT Surgeon, a
Physiatrist and an Ophthalmologist, PW1 then aged 15 years was
assessed to have 50% disability coming under the moderate
category. Ext.P18 has been proved through PW17, whose testimony
I have already referred to.
12.1. PW9, Headmistress, Government Higher
Secondary School, Puliyinam deposed that PW1 was a student of
integrated education for disabled. PW1 the victim girl when
examined deposed that she had passed 10 th standard with 60%
marks. Now the moot question is - was PW1 a competent witness?
Section 118 of the Evidence Act says that all persons shall be
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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. Explanation to the Section says that 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. In the case of a child witness, normally the trial courts
conduct voir dire to ascertain the competence of the witness. It is
true that no preliminary questions were asked by the trial Court to
test the competency of PW1. The evidence on record shows that
PW1 was above 16 years when she was examined before the court.
Sections 328 to 339 in Chapter XXV Cr.P.C. deal with the
procedure to be followed in case an accused is found to be of
unsound mind and consequently incapable of making his defence.
The court in such cases shall cause the accused to be examined by a
civil surgeon or such other medical officer as the State Government
may direct and on examination, if the accused is found to be of
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unsound mind and incapable of defending himself, shall postpone
the trial of the case till he attains normalcy. The court has the power
to even discharge the accused.
13. In Ramesh P. v. State rep. by Inspector of
Police : 2019 KHC 6676 : AIR 2019 SC 3559, the Apex Court
referring to Ratan Sinh Dalsukhbhai Nayak v. State of Gujarat,
2003 KHC 1445 : (2004) 1 SCC 64, subsequently relied upon
in Nivrutti Pandurang Kokate v State of Maharashtra, 2008
KHC 5208 : (2008)12 SCC 565 also held that the decision on the
question whether the child witness has sufficient intelligence
primarily rests with the trial Judge who notices his manners, his
apparent possession or lack of intelligence, and the said Judge may
resort to any examination which will tend to disclose his capacity
and intelligence as well as his understanding of the obligation of an
oath. The decision of the trial court may, however, be disturbed by
the higher court if from what is preserved in the records, it is clear
that his conclusion was erroneous. This precaution is necessary
because child witnesses are amenable to tutoring and often live in a
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world of make-believe. Though it is an established principle that
child witnesses are dangerous witnesses as they are pliable and
liable to be influenced easily, shaped and moulded, but it is also an
accepted norm that if after careful scrutiny of their evidence the
court comes to the conclusion that there is an impress of truth in it,
there is no obstacle in the way of accepting the evidence of a child
witness. To determine the competency of a child witness, the judge
has to form her or his opinion. The judge is at the liberty to test the
capacity of a child witness, and no precise rule can be laid down
regarding the degree of intelligence and knowledge which will
render the child a competent witness. The competency of a child
witness can be ascertained by questioning her / him to find out the
capability to understand the occurrence witnessed and to speak the
truth before the court. In criminal proceedings, a person of any age
is competent to give evidence if she / he can (i) understand
questions put as a witness; and (ii) give such answers to the
questions that can be understood. A child of a tender age can be
allowed to testify if she / he has the intellectual capacity to
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understand questions and give rational answers thereto. A child
becomes incompetent only in case the court considers that the child
was unable to understand the questions and answer them in a
coherent and comprehensible manner. If the child understands the
questions put to her / him and gives rational answers to those
questions, it can be taken that she / he is a competent witness to be
examined. (See also Dalsukhbhai Nayak v. State of Gujarat,
2003 KHC 1445: (2004)1 SCC 64)
13.1. Here it would be apposite to refer to the dictum of
a learned Single Judge of the High Court of Orissa in Damodar
Das @ Bhoi v. State of Orissa, 2019 KHC 2165, which case also
involved commission of offences under Sections 366, 376(2)(f) and
506 IPC. It was contended that since the victim was a child witness,
the trial Judge ought to have first ascertained the competency of the
victim to depose by putting some questions in order to ascertain
whether the witness was intelligent enough to say what has passed
with her and whether she understood the duty of speaking truth or
not and in absence of preliminary examination of the victim, her
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credibility was seriously affected and her evidence should be
rejected on that score alone. It was held that there can be no dispute
that in view of S.118 of the Evidence Act, all persons are 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 due to tender years etc. No particular age
has been prescribed as a demarcating line for treating a witness
incompetent to testify by reason of his / her tender age. Competency
to testify depends on the ability to understand questions and to give
rational answers. It depends on the capacity and intelligence of the
child witness, his appreciation of the difference between truth and
falsehood as well as his duty to speak truth. When a witness is
called upon to give evidence and there is reason to suspect that he /
she may not be capable of giving rational answers to the questions
put to him / her, it is but necessary for the Court to put some
questions to such witness with a view to ascertain whether he / she
is a competent witness to give evidence or not. There is no dispute
that since a child witness is prone to tutoring, his / her evidence
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should be scanned carefully, and preliminary questions are required
to be put to such witness to ascertain as to whether he / she has
intellectual capacity to understand the questions and give rational
answers thereto. The preliminary examination of a child witness is
nothing but a rule of caution. The trial Court is required to record its
query to a child witness in the form of questions and answers so that
the Appellate Court will be able to see whether child witness
understands the duty of speaking truth. Even though it is desirable
to make such a preliminary examination, it is not always imperative.
There is no rule that in case of every child witness, the trial Court
should conduct a preliminary examination. It is only a rule of
prudence and not a legal obligation. When questions are raised
regarding the intellectual capacity of the child witness, the Court
can peruse the evidence of the victim in its entirety to find out as to
whether he / she was capable enough to give rational answers to the
questions put to him / her after understanding the same. Absence of
preliminary examination of the child witness would not render his /
her evidence inadmissible. The victim in the case was aged about 14
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years at the time of her deposition. Even though the trial Court did
not put any formal questions to the victim to testify her competency,
in the light of the nature and tenor of the evidence of the victim, the
manner in which she deposed about the occurrence in examination -
in - chief and also faced and stood the test of searching cross -
examination by the defence counsel, it was held that the witness
was competent and so the argument that the evidence of the victim
should be rejected in toto as the trial Court had not made any
preliminary examination of the victim was rejected. But a note of
caution was sounded, that is, the evidence of such a victim would
have to be examined carefully and with greater circumspection by
the court to convince itself regarding the quality and reliability of
the child's version. Though the aforesaid decisions refer to child
witnesses, in my opinion the same principle can be applied to the
case on hand also.
14. It was pointed out that after the FIS was given,
PW1 was taken to the Government hospital, Aluva. But she refused
to co-operate and hence her examination could not be conducted.
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She had to be then taken to the Medical College, Thrissur for her
medical examination. Likewise, initially PW1 refused to speak/open
up when she was summoned before the Court for her examination.
The case had to be adjourned as PW1 was not co-operating. The
court was then informed that PW1 would open up only in the
presence of PW2 and so the Court summoned PW2, not a charge
witness, causing great prejudice to the accused. The learned defence
counsel took strong exception to the trial court summoning and
examining PW2 to prove the prosecution case. I think the challenge
mounted on the examination of PW2 is not justified. It is true that
PW2 was not a charge witness. But in cases of this nature, the trial
court has to create a conducive atmosphere for witnesses of sexual
abuse to speak up. When it was found that PW1 would be
comfortable and feel free to depose only in the presence of PW2,
the trial court rightly summoned him. The defence was given ample
opportunity to cross-examine PW2. It is true that if PW2 had been
made a charge witness there would have been his 161 statement(s)
which would have enabled the accused to contradict him, if found
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necessary. However, it is to be noticed that PW2 is not an
eyewitness, and his testimony makes it quite clear that he does not
have any interest, personal or otherwise in the matter. PW2 deposed
that PW1 had been referred to him by one of his friends and that he
had counselled PW1 when he was told that she had difficulty
studying and concentrating. However, the moment PW2 felt that it
was a case of sexual abuse, he stopped counselling her and advised
the sister of PW1, who was accompanying her to take the victim to
a person qualified to conduct further counselling. Therefore, I do
not find anything amiss in the trial court summoning PW2 and
examining him or examining PW1 in the presence of PW2.
15. It is true that no preliminary questions are seen put
to PW1 by the trial court to test her competency. But as noticed
earlier this preliminary examination of the witness is nothing but a
rule of caution. Even though it is desirable to make such a
preliminary examination, it is not always imperative. There is no
rule that in case of every such witness, the trial Court should
conduct a preliminary examination. Absence of preliminary
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examination of the witness would not render her evidence
inadmissible. It is only a rule of prudence and not a legal
obligation. As questions are raised regarding the intellectual
capacity of PW1, I will closely examine the testimony of PW1 in its
entirety to find out whether she was capable enough to give rational
answers to the questions put to her after understanding the same.
16. It is true that PW1 candidly admitted to
hallucinating, having delusions and entertaining fear that the villain
characters in the movies and serials she had watched on T.V. were
troubling her during night. The testimony of PW12, to which I have
already referred to, will show that PW1 did not have any serious
mental issues. As pointed out by the trial court, it is pertinent to note
that the accused/appellant, her neighbour was initially on quite
friendly terms with her. The relationship between both the families
was quite cordial. No materials have come on record to show that
PW1 was afraid or terrified of the accused. Several questions are
seen put to PW12 regarding hallucinations, delusions etc. But they
are all general questions. It is true that PW1 was reluctant to submit
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herself for medical examination when she was first taken to a
hospital. Thereafter, she had to be taken to another hospital and then
she consented for the examination. This conduct of PW1 does not
in any way show that she was incompetent to depose or that her
intellectual incapacity was such that making her an incompetent
witness.
17. The learned defence counsel also took strong
exception to the summoning and examination of PW12 who was
also not a charge witness in the final report. According to the
learned counsel, the trial court practically stepped into the shoes of
the prosecutor and was summoning witnesses and documents to fill
up the loopholes and lacuna in the prosecution case. I think this
argument is also not justified because Courts are not expected to
remain as mute spectators when the prosecutor does not
properly/adequately take steps to prove the prosecution case. In
Ram Chander v. State of Haryana, 1981 (3) SCC 191 it has been
held that the adversary system of trial being what it is, there is an
unfortunate tendency for a judge presiding over a trial to assume the
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role of a referee or an umpire and to allow the trial to develop into a
contest between the prosecution and the defence with the inevitable
distortions flowing from combative and competitive element
entering the trial procedure. If a criminal court is to be an effective
instrument in dispensing justice, the presiding judge must cease to
be a spectator and a mere recording machine. He must become a
participant in the trial by evincing intelligent active interest by
putting questions to witnesses in order to ascertain the truth.
17.1. In J. Jayalalithaa v. State of Karnataka, 2013
KHC 4787: 2014 (2) SCC 401, the Apex Court dealing with the
concept of fair trial held that denial of a fair trial is as much
injustice to the accused as is to the victim and the society. It
necessarily requires a trial before an impartial Judge, a fair
prosecutor and an atmosphere of judicial calm. Since the object of
the trial is to mete out justice and to convict the guilty and protect
the innocent, the trial should be a search for the truth and not a bout
over technicalities and must be conducted under such rules as will
protect the innocent and punish the guilty. Justice should not only
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be done but should seem to have been done.
17.2. In Bablu Kumar v. State of 2015 KHC 3293:
2015 (8) SCC 787, it has been held that if the Court is of the
opinion that the material witnesses have not been examined, it
should not allow the prosecution to close the evidence. There can be
no doubt that the prosecution may not examine all the material
witnesses but that does not necessarily mean that the prosecution
can choose not to examine any witness and convey to the Court that
it does not intend to cite the witnesses. The Public Prosecutor who
conducts the trial has a statutory duty to perform. He cannot afford
to take things in a light manner. The Court also is not expected to
accept the version of the prosecution as if it is sacred. It must apply
its mind on every occasion. Non-application of mind by the trial
court has the potential to lead to the paralysis of the conception of
fair trial.
17.3. Munna Pandey v. State of Bihar: 2023 KHC
6817: 2023 SCC OnLine SC 1103, it has been held that the judge
should not be a passive spectator but should take a proactive role. If
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the Courts are to impart justice in a free, fair and effective manner,
then the presiding judge cannot afford to remain a mute spectator
totally oblivious to the various happenings taking place around him,
more particularly, concerning a particular case being tried by him.
The fair trial is possible only when the court takes active interest
and elicits all relevant information and material necessary so as to
find out the truth for achieving the ultimate goal of dispensing
justice with all fairness and impartiality to both the parties.
18. It is no doubt true that the court is not to step into
the shoes of the prosecutor or of defense counsel. But it certainly
has a duty to bring out the truth. PW12 though not a charge witness,
seems to have been examined by the trial court as the competence
of PW1 to depose was challenged. PW2 was examined as PW1
refused to depose in the first instance. When it was brought to the
notice of the trial court that PW1 would feel comfortable to depose
only in the presence of PW2, the latter was summoned, and he was
permitted to be present in the court hall during the examination of
the former. The defence was given ample opportunity to cross-
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examine both the said witnesses. Therefore, I do not find any
prejudice caused to the accused.
19. On going through the testimony of PW1, I find
that she has given rational answers to the questions put to her in the
chief as well as in the cross-examination. Though she was
extensively cross-examined, she was able to withstand the same. I
find that her testimony has not been discredited or disproved in any
manner. Therefore, I find that the trial court was right in holding
that she was a competent witness.
20. Though the prosecution has a case that on several
days the accused had raped her and that the abuse started from the
time PW1 was in the 5th STD, the said case was not accepted as
evidence was found unsatisfactory. But the case of rape that took
place on 30/12/2010 was believed as the evidence on record was
found to be satisfactory. It is true that in Ext.P1 FIS there is no case
of penetrative sexual assault. However, Ext.P1 FIS was not given
by PW1, but it was given by her uncle, namely, PW4. It is true that
PW1 was present at the time when the FIS was given. As pointed
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out by the defence counsel, PW1 was questioned by the police
twice. It was pointed out that only when PW1 was questioned the
second time, she spoke up about the penetrative sexual assault. The
prosecution has not furnished any reason(s) which prompted the
investigating officer to question PW1 the second time. Even when
PW3, the mother, was questioned she also did not have a case that
her daughter had been raped by the accused. It is only when PW1
for reasons best known to the police was questioned the second
time, she comes out with a new story of rape. This itself is sufficient
to show that the prosecution case is unbelievable, goes the
argument. I disagree with the aforesaid arguments of the learned
defence counsel. As pointed out by the learned defence counsel
PW1 was questioned twice by the police. PW1 was questioned for
the second time on 23/05/2011 which is seen clarified by PW15, the
investigating officer during his examination. It has come out in
evidence that PW1 was examined by the doctor on 23/05/2011 at
03:15 p.m. During the examination it was found that her hymen was
torn. Going by the testimony of PW15, on the very same day in the
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evening PW1 was questioned the second time and her statement
was recorded. Finding that the offence of rape was made out, he
submitted Ext.P15 report to the effect that the offence under Section
376 was made out and therefore Section 511 of 376 was being
deleted and Section 376 IPC being added. Therefore, the reason for
questioning PW1 for the second time is apparent from the aforesaid
materials on record. Given the mental trauma PW1 was undergoing
at that time, the reluctance to give the entire details when initially
questioned is understandable. PW3 and PW4 speak of the trauma
of PW1. PW1 initially never disclosed the abuse to anybody, not
even to her mother. It was only when her mother, seeing her crying,
enquired the matter and then she revealed the abuse to the former.
No major contradictions have been brought out in her testimony.
The medical evidence also substantiates the case of rape. A defence
is seen taken that the hymen could be torn, if a person is habituated
to masturbation. However, no such question is seen put to PW1
while she was in the box.
21. It is also true that there was some delay in
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reporting the matter to the police. However, PW3, the mother of
PW1 and PW4 her uncle, have explained the delay. As noticed
earlier, initially, PW1 never disclosed the incident to anybody. It
was only much later she disclosed the abuse to her mother. Her
mental issues also delayed reporting the matter to the police. The
intellectual disability of PW1 is not to such an extent to make her
incompetent to be a witness. Her intellectual disability was only
50%. She passed her 10th standard with 60% marks. Materials on
record show that PW1 could identify people and distinguish
between what was right and wrong. She has given quite rational
answers to the questions put in the chief as well as in the cross
examination. In these circumstances, I find no infirmity in the
findings of the trial court calling for an interference by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
