Kerala High Court
Rajab Khandakar vs State Of Kerala on 28 May, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 28 DAY OF MAY 2025 / 7TH JYAISHTA, 1947
CRL.A NO. 480 OF 2022
CRIME NO.701/2019 OF Vazhakulam Police Station, Ernakulam
AGAINST THE JUDGMENT DATED 20.09.2021 IN SC NO.284 OF 2020
OF FAST TRACK SPECIAL COURT , PERUMBAVOOR
APPELLANT/ACCUSED (IN CUSTODY):
RAJAB KHANDAKAR, AGED 34 YEARS
SON OF ROKEYA BEWA, NAZIRPUR VILLAGE, GUJANIPUR P.O.,
MURSHIDABAD, WEST BENGAL, PIN - 742213
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
R.GAYATHRI
SADIK ISMAYIL
M.MAHIN HAMZA
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
BY SRI. RENJITH T,R,, SR PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2025,
THE COURT ON 28.05.2025 DELIVERED THE FOLLOWING:
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Crl.Appeal No.480/2022
2
JUDGMENT
K.V.Jayakumar, J.
This Criminal Appeal is preferred against the judgment of the Fast
Track Special Court, Perumbavoor in S.C.No.284/2020. The offences
alleged against the appellant/accused are under Section 376(3) of the
Indian Penal Code and Section 3(a) r/w 4 of the Protection of Children
from Sexual Offences Act, 2012 [hereinafter referred as 'the POCSO Act'].
2. The learned Special Judge convicted and sentenced the
accused to undergo imprisonment for life and to pay a fine of Rs.25,000/-
for the offence punishable under Section 3(a) r/w 4(2) of the POCSO Act.
The Court further directed that, if the fine amount is realized, it shall be
paid to the victim as compensation under Section 357(1)(b) of Cr.P.C. No
separate sentence was awarded to the accused under Section 376(3) of the
Indian Penal Code. Impugning the judgment of the Special Court,
Perumbavoor, the sole accused has preferred this Criminal Appeal.
3. The allegation in this matter is that, a 13 year old child was
subjected to penetrative sexual assault and rape by a migrant worker
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residing near the house of the victim. The prosecution case is that, on
23.10.2019, at about 2p.m, while the victim girl was washing clothes in a
stream near her house, the appellant/accused took her to a nearby
abandoned and dilapidated building by catching hold of her hands and
committed rape on her and thereby, committed the aforementioned
offences.
4. PW1, the victim, lodged Ext.P1 FIS on 07.11.2019 to PW9, a
women police officer of Vazhakkulam Police Station. On the basis of Ext.P1
FIS, Ext.P11 FIR was registered by PW12, the Sub Inspector of Police.
PW14 conducted the investigation. The victim was subjected to medical
examination and her statement was caused to be recorded under Section
164 of Cr.PC. The accused was arrested on 08.11.2019. After completion of
the investigation, final report was filed before the Special Court under the
POCSO Act, Ernakulam. Thereafter, the matter was transferred to the
Special Court, Perumbavoor for trial and disposal.
5. The trial court framed charge for the offences punishable
under Section 376(3) of the IPC and Section 3(a) r/w 4 of the POCSO Act.
The said charge was read over and explained to the accused, to which he
pleaded not guilty. On the side of prosecution, PWs.1 to 16 were examined,
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Exts.P1 to P15 were marked. MOs.1 and 2 series were identified and
marked. After closing the prosecution evidence, the accused was examined
under Section 313(1)(b) of Cr.PC. He denied all the incriminating
circumstances levelled against him.
6. No defence evidence was adduced. The learned Special Judge,
after a full fledged trial, found the accused guilty, convicted, and sentenced
him as aforesaid.
7. The learned Public Prosecutor supported the judgment of the
trial court. The learned Public Prosecutor submitted that the impugned
judgment is legally sustainable and no interference is warranted.
8. On the other hand, Adv.Saipooja, the learned counsel for the
appellant, submitted that the impugned judgment of the Fast Track Special
Court, Perumbavoor is unsustainable. The prosecution has miserably
failed to allege and prove the charge against the appellant/accused beyond
reasonable doubt. The trial court convicted the appellant on the basis of
surmises and conjectures, presumptions and assumptions. She submitted
that the penal provisions are to be interpreted strictly within the four
corners of the Statute. Suspicion, however strong it may be, cannot be
considered as a substitute for proof.
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9. Adv.Saipooja submitted that the prosecution has miserably
failed to aver and prove that the accused has committed rape on the victim
girl. The identity of the accused in this case is doubtful and therefore, the
entire prosecution story is to be discarded on that ground alone.
10. Even according to the material witnesses, the alleged sexual
abuse was done by a migrant labourer, speaking Hindi (Hindikkaran). No
witness has mentioned the name of the accused either to the police or
before the Court. Adv.Saipooja submitted that, if the assailant or culprit is
not identified by his name, the investigating officer ought to have
conducted a Test Identification Parade (TIP) to ascertain the identity of the
real culprit. In the instant case, no such step was taken by the prosecution.
The non-conduct of Test Identification Parade is fatal in this case.
11. The second submission of the learned counsel for the accused
is that, FIS was lodged by the victim with a delay of two weeks and thereby
great prejudice is caused to the accused. The unexplained delay of two
weeks in lodging the FIS casts serious doubts in the prosecution story.
12. Adv.Saipooja further submitted that the prosecution has failed
to prove the foundational facts of the alleged crime and therefore, the
presumptions under Section 29 of the POCSO Act cannot be invoked in this
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case. The learned counsel further submitted that the prosecution has a
bounden duty to prove that the age of the victim is less than 18 years. The
age of the victim has not been properly proved through authoritative
records.
13. PW1, the victim in chief examination would say that, she does
not know her date of birth. She sated that, when she went to a stream near
her house, a person who speaks Hindi, caught hold of her and took her to a
dilapidated house nearby and after removing her clothes, committed rape
on her. That man penetrated his sexual organ into her vagina. When she
cried out, an old man came there and asked the assailant what he was
doing. The assailant ran away from the scene. She went to the hospital
after a month. During that incident, she had bitten on the hand of the
accused. She further stated that she is acquainted, as he resides near the
house. The name of the old man who came to the scene of occurrence is
Kanakaraj and he is running a shop.
14. After the incident, the victim went to her house.
CW2/Kanakaraj narrated the incident to her elder sister. She narrated the
incident to her mother. Victim's FI statement was recorded by a Women
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Police Officer and she identified her signature in the FI statement. The
victim further stated that she spoke about the incident to the doctor when
she was taken to the hospital. The victim also identified the relevant
portions in Section 164 statement. According to the victim, the incident
was on 23.10.2019 at about 12 noon. She went to hospital on 06.11.2019.
According to the victim, she was taken to a house nearby, which has no
doors. Mr.Kanakaraj told her to lodge a complaint before the police. She
does not know why the complaint was not filed immediately. The victim
identified the accused through video conferencing. She identified the
dresses worn by her as MO1 series during the alleged time of occurrence.
15. PW2 is the mother of the victim. She stated that the accused is
her neighbour residing in a line building. PW2 stated that the incident was
on 23.10.2019. When she reached her house at about 2 pm, her elder
daughter told her that, one Kanakaraj told her that he saw the sexual abuse
of the victim. When PW2 made enquiries to her daughter (PW1), she
stated that a Hindi speaking person assaulted her. PW2 narrated the
incident to her husband - PW3, who in turn said that the complaint could
be lodged later, after the arrival of the accused from Calcutta. Thereafter,
when the victim suffered stomach pain and pain over her vagina, was taken
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to hospital on 06.11.2019. The doctor intimated the matter to the police.
PW2 further stated that the accused is known to her for the past one year.
In cross examination, she would admit that she had lodged a complaint
against her husband for causing hurt to PW1. PW2 further stated that
Mr.Kanakaraj (CW2) told her that a complaint is to be filed before police.
There is no reason for not lodging the complaint immediately before the
police. She denied the suggestion that the complaint was not filed since the
incident was false.
16. PW3, the father of the victim, stated that he came to know
about the incident when his wife narrated the incident to him. Thereafter,
he went to the room of the accused and enquired. The enquiry would
reveal that the accused went to his native place. He further stated that he
thought that the complaint could be lodged after the return of the accused
from Calcutta. He put his signature in Ext.P3 - scene mahazar. In cross
examination, PW3 stated that he enquired about the incident through
CW2, Kanakarajan.
17. PW4 is an attesting witness to Ext.P4 scene mahazar. PW5 is
Dr.Unnikrishnan who examined the accused and issued Ext.P5 potency
certificate. PW6 was the Secretary Vazhakkulam Grama Panchayath who
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issued Ext.P6 Ownership Certificate. As per Ext.P6, the building bearing
No.V/259 is owned by one Fr.Varghese Nambiar Parambil,
18. PW7 is the Village Officer who prepared Ext.P7 site plan. PW8
is Dr.Ayisha who examined the victim on 08.11.2019 and issued Ext.P8
medical certificate. According to PW8, the victim told her that, while she
was taking a bath in a nearby stream, a north Indian took her to the house
nearby and assaulted her. In Ext.P8 certificate, PW8 noted that, victim's
father refused to file a complaint before police.
19. PW9 is the Women Police Officer who recorded the FI
statement of the victim. She also put her signature in Ext.P4 scene
mahazar. PW9 identified MO1 series dress worn by the victim. PW11 is the
Nyayadhikari who recorded Section 164 statement of the victim on
08.11.2019. PW13 is the Headmistress of the Government School, wherein
the victim studied. She produced the relevant extract of the admission
register, whereby the victim had joined the school in 2013. As per Ext.P12
school admission register, the date of birth of the victim is 15.03.2007.
According to this witness, the victim took admission in the 1st standard, but
dropped out in that year itself.
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20. PW14 conducted the investigation and filed the final report.
He obtained Ext.P12, extract of Birth Certificate from the school wherein,
the victim studied. He also obtained Ext.P6 Ownership Certificate of the
room of the alleged place of occurrence. He also produced Ext.P13 extract
of birth certificates from the Registrar of Births and Deaths. He would
further say that, CW2, Kanakaraj, died on 02.05.2020 and produced a
photocopy of his Death Certificate, which was marked as Ext.P15 subject to
proof. PW15, Jince Cyriac, testified that he issued Ext.P13 Birth Certificate
of the victim. She would say that, in Ext.P13, the names of parents were
not shown. PW16, Dr.Tessiyamma Sebastin, examined the victim on
06.11.2019. She found an infection in the victim's private part. The victim
told her that she was abused by a migrant labourer. PW16 gave a written
complaint to the police. She could not recollect whether there were any
injuries on the victim's body.
21. The first submission of the learned counsel for the appellant is
that the identity of the accused in this case is highly doubtful. The
prosecution alleges that the accused has committed sexual abuse of the
victim girl. Adv. Saipooja submitted that the accused is not properly
identified either at the crime stage or during the trial stage. Admittedly, no
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Test Identification Parade was conducted in this case. The material
witnesses in this case ie., PWs.1 to 3 would never say that the alleged
offence has been committed by a named person. In order to fortify the
contentions, learned counsel placed reliance on the judgment in
Rameshwar Singh v. State of J and K1. In Rameshwar Singh's case
(supra), the Honourable Apex Court emphasized the importance of the Test
Identification Parade when the accused was not known to the witness by
his name. Paragraph 6 of the judgment is extracted hereunder:
"6 Before dealing with the evidence relating to
identification of the appellant it may be remembered that the
substantive evidence of a witness is his evidence in court but
when the accused person is not previously known to the
witness concerned then identification of the accused by the
witness soon after the former's arrest is of vital importance
because it furnish to the investigating agency an assurance
that the investigation is proceeding on right lines in addition
to furnishing a corroboration of the evidence to be given by
the witness later in court at the trial. From this point of view
it is a matter of great importance both for the investigation
agency and for the accused and a fortiori for the proper
administration of justice that such identification is held
without avoidable and unreasonable delay after the arrest of
the accused and that all the necessary precautions and
safeguards are effectively taken so that the investigation
proceeds on correct lines for punishing the real culprit. It
would, in addition, be fair to the witness concerned who was
1971(2) SCC 715 : AIR 1972 SC 102
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a stranger to the accused because in that event the chances of
his memory fading are reduced and he is required to identify
the alleged culprit at the earliest possible opportunity after
the occurrence. It is thus and thus alone that justice and
fairplay can be assured both to the accused and to the
prosecution. The identification during police investigation, it
may be recalled, is not substantive evidence in law and it can
only be used for corroborating or contradicting evidence of
the witness concerned as given in court. The identification
proceedings, therefore, must be so conducted that evidence
with regard to them when given at the trial, enables the court
safely to form appropriate judicial opinion about its
evidentiary value for the purpose of corroborating or
contradicting the statement in court of the identifying
witness."
22. In Mukesh Singh v. State (NCT of Delhi)2, the Apex
Court observed that, compelling the attendance of an accused in a Test
Identification Parade cannot be regarded as violation under Article 20(3) of
the Constitution of India. Paragraphs 40 and 41 of Mukesh's case (supra)
reads thus:
40. During the investigation of a crime committed by
persons unknown to the witnesses, the persons arrested on
suspicion of their complicity in the crime have got to be
confronted by the investigating authority with the witnesses
so that they can find out whether they are the persons who
2023 KHC OnLIne 6804
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committed the crime or not. Before the investigating
authorities send up a case to Court, they must be satisfied
that the persons arrested by them are the persons accused
of having committed the crime.
41. If they were known to the witnesses, the witnesses
would have given their names and that would have
established their identity, but when they were not known,
their identity could be established only if the witnesses on
seeing them say that they are the offenders. Since it would
be very easy for a witness who has little regard for truth, to
say that the person arrested on suspicion was the offender,
he is confronted with the suspect mixed with innocent men.
If he picks him out, That would add to the credibility of his
statement that he was the offender. This is the primary
object of identification proceeding."
(underline supplied)
23. The learned counsel for the appellant/accused invited the
attention of this Court to the judgment in Biju @ Ernakulam Biju v.
State of Kerala3 where it is held that, conviction of accused solely based
on the identification made by victim after a period of about 16 years in
Court, which was not corroborated by a previous identification procedure,
is unsustainable in law and is liable to be set at naught. Paragraphs 13 and
14 reads as follows:
2024 KHC OnLine 1198
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"13. During the investigation of a crime committed by
persons unknown to witnesses, the persons arrested on
suspicion of their complicity in the crime by the
investigating agency have to be confronted with the
witnesses, so that they can find out whether they are the
persons who committed the crime, for, before the
investigating agency sends up a case to the Court, they must
be satisfied that the persons arrested by them are the
persons accused of having committed the crime. If they
were known to the witnesses, the witnesses would have
certainly given their names and established their identity,
but when they are not known, their identity could be
established only if the witnesses, on seeing them, say that
they are the offenders. It is well settled that where a witness
identifies an accused who is not known to him in the Court
for the first time, his evidence is absolutely valueless, unless
there has been a previous identification proceedings to lend
support to the identification made by the witness in court.
It is all the more so when identification of accused is made
after several years (See Kanan v. State of Kerala, 1979 (3)
SCC 319).
14. If the investigating agency brings before the
witnesses those persons arrested by them on suspicion and
if the witnesses are not in a position to assert on their own
that the shown persons are not the real culprits, there
would be a tendency on the part of the witnesses to merely
agree that the arrested persons are the real culprits. Such
tendencies would be more, if the witnesses belong to the
lower strata of the society. Likewise, if the witnesses are
shown the persons arrested on suspicion after a long lapse
of time, the possibility of witnesses committing mistakes as
to the identity also cannot be ruled out, especially in the
case of twin brothers and persons who have close
similarities etc. If the investigating agency proceeds on the
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basis of such affirmation by the victim, the consequences
would be disastrous, for, if the apprehended persons are
not the real culprits, the real culprits would escape from the
clutches of law and innocent persons would face the ordeal
of trial. At the same time, instead of showing suspected
persons apprehended by the police to witnesses, if the
witnesses are confronted with the suspects mixed along
with other innocent men and if the witnesses then pick the
real culprits out of the group, that would add to the
credibility of their statement that they were the offenders.
This is the primary object of the test identification parade
(See Mukesh Singh v. State (NCT of Delhi), 2023 KHC
OnLine 6804)."
In Biju's case (supra), the Division Bench of this Court has set aside the
conviction and sentence of the accused which was solely based on the
identification of the assailant by the victim in Court after about 16 years.
24. In the instant case, the material witnesses are PWs.l to 3.
According to PW1, victim aged 13 years, while she went to a stream for
washing her clothes, one Hindikkaran (a Hindi speaking person) took her
to a nearby room and committed rape on her. PW1, victim, never stated the
name of the assailant. She identified the accused through video
conferencing.
25. The mother of the victim, PW2, would say that her elder
daughter told her that a Hindi speaking person sexually abused PW1. Even
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though she would say that the accused is known to her for the past one
year, she did not identify him in the dock.
26. PW3, father of the victim, would also say that, when he
enquired about the person who allegedly abused his daughter, he got
information that the said Hindi speaking person left to his native place.
PW14, the investigating officer never stated that, during the investigating
stage, the accused was shown to the victim and identified by her.
27. On perusal of the evidence of the material witnesses in this
case, it could be seen that the accused was identified by the victim for the
first time in the dock. Adv.Saipooja would submit that, first time
identification of the accused in the dock, without a Test Identification
Parade is insufficient to fasten penal liability on the accused, that too,
through video conferencing.
28. Yet another interesting aspect in this case is that the arrest of
the accused is not properly proved by the prosecution.
29. It is pertinent to note that, even though the accused was
arrested in this case, the contemporaneous documents to prove the arrest
such as arrest memo, attest intimation and inspection memo were not
prepared in this case. In D.K. Basu,Ashok K. Johri vs State Of West
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Bengal,State Of U.P4, the Apex Court has issued detailed guidelines to be
observed by the police while arresting a person. The relevant paragraphs of
D. K. Basu's case (supra) are extracted hereunder:
"(1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and
clear identification and name togs with their designations. The
particulars of all such police personnel who handle interrogation
of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee
shall prepare a memo of arrest at the time of arrest a such memo
shall be attested by atleast one witness. who may be either a
member of the family of the arrestee or a respectable person of
the locality from where the arrest is made. It shall also be counter
signed by the arrestee and shall contain the time and date of
arrest.
(3) A person who has been arrested or detained and is being held
in custody in a police station or interrogation centre or other
lock-up, shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is
being detained at the particular place, unless the attesting witness
of the memo of arrest is himself such a friend or a relative of the
arrestee. (4) The time, place of arrest and venue of custody of an
arrestee must be notified by the police where the next friend or
relative of the arrestee lives outside the district or town through
the legal Aid Organisation in the District and the police station of
the area concerned telegraphically within a period of 8 to 12
hours after the arrest.
AIR 1997 SC 610
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(5) The person arrested must be made aware of this right to have
someone informed of his arrest or detention as soon he is put
under arrest or is detained.
(6) An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose the
name of the next friend of the person who has been informed of
the arrest and the names and particulars of the police officials in
whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined
at the time of his arrest and major and minor injuries, if any
present on his/her body, must be recorded at that time. The
"Inspection Memo" must be signed both by the arrestee and the
police officer effecting the arrest and its copy provided to the
arrestee.
(8) The arrestee should be subjected to medical examination by a
trained doctor every 48 hours during his detention in custody by a
doctor on the panel of approved doctors appointed by Director,
Health Services of the concerned State or Union Territory.
Director, Health Services should prepare such a penal for all
Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest,
referred to above, should be sent to the illaqa Magistrate for his
record.
(10) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and
state headquarters, where information regarding the arrest and the
place of custody of the arrestee shall be communicated by the
officer causing the arrest, within 12 hours of effecting the arrest
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and at the police control room it should be displayed on a
conspicuous notice board."
30. Adv.Saipooja submitted that, identity of the accused, his
involvement in the crime and the arrest were not at all proved by the
prosecution beyond reasonable doubt.
31. The learned Public Prosecutor resisted this argument
contending that the accused is a neighbour of the victim and is known to
the witnesses for the past one year.
32. On going through the evidence let in by the prosecution, it
could be seen that no material is brought on record regarding the
whereabouts of the accused. No evidence, oral or documentary, is
forthcoming to prove that where the accused is residing, where he is
employed and under whom, from which State he has come from, such other
details.
33. Adv.Saipooja further submitted that, there is an unexplained
delay of two weeks in lodging the FIS . In Md.Ali @ Guddu v. State of
U.P 5, the Hon'ble Supreme Court observed that, even though in rape cases
2015(7) SCC 272
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the delay in filing the FIR is not significant, the facts and circumstances of
the said delay is to be considered and the said delay is to be properly
explained. Paragraph 27 of the said judgment reads thus:
"27. Be it clearly stated here that delay in lodging FIR in
cases under Section 376 IPC would depend upon facts of each
case and this Court has given immense allowance to such
delay, regard being had to the trauma suffered by the
prosecutrix and various other factors, but a significant one, in
the present case, it has to be appreciated from a different
perspective. The prosecutrix was missing from home. In such
a situation, it was a normal expectation that either the mother
or the brother would have lodged a missing report at the
police station. The same was not done. This action of PW2
really throws a great challenge to common sense. No
explanation has been offered for such delay. The learned trial
Judge has adverted to this facet on an unacceptable backdrop
by referring to the principle that prosecutrix suffered from
trauma and the constraint of the social stigma. The
prosecutrix at that time was nowhere on the scene. It is the
mother who was required to inform the police about missing
of her grown-up daughter. In the absence of any explanation,
it gives rise to a sense of doubt."
34. In Rajesh Patel v. State of Jhakhand6 Apex Court
observed that if there is delay in lodging the FIR and the same is not
satisfactorily explained, which is fatal to the prosecution. Paragraph 16 of
the aforesaid judgment reads thus:
2013(3) SCC 791
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"16. Further, there is an inordinate delay of nearly 11
days in lodging the FIR with the jurisdictional police. The
explanation given by the prosecutrix in not lodging the
complaint within the reasonable period after the alleged
offence committed by the appellant is that she went to her
house and narrated the offence committed by the appellant to
her mother and on the assurance of Purnendu Babu, PW 3, the
mother remained silent for two to four days on the assurance
that he will take action in the matter. Further, the explanation
given by the prosecutrix regarding the delay is that at the time
of commission of offence the appellant had threatened her that
in case she lodges any complaint against him, she would be
killed. The said explanation is once again not a tenable
explanation. Further, in the reason assigned by the High Court
regarding not lodging the complaint immediately or within a
reasonable period, it has observed that in case of rape, the
victim girl hardly dares to go to the police station and make the
matter open to all out of fear of stigma which will be attached
with the girls who are ravished. Also, the reason assigned by
the trial court which justifies the explanation offered by the
prosecution regarding the delay in lodging the complaint
against the appellant has been erroneously accepted by the
High Court in the impugned judgment [ Criminal Appeal No.
58 of 1999, decided on 14-11-2006 (Jhar)] . In addition to that,
further observation made by the High Court regarding the
delay is that the prosecutrix as well as her mother tried to get
justice by interference of PW 3, who is a common friend of
both of them and PW 4, the doctor with whom the prosecutrix
was working as a nurse. When the same did not materialise,
after a lapse of 11 days, the FIR was lodged with the
jurisdictional police for the offence said to have been
committed by the appellant. Further, the High Court has also
proceeded to record the reason that the prosecutrix had every
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opportunity to give different date of occurrence instead of
14-2-1993 but she did not do it which reason is not tenable in
law. Further, the High Court accepted the observation made by
the learned trial Judge wherein the explanation given by the
prosecutrix in her evidence about being terrorised to be killed
by the appellant in case of reporting the matter to the police, is
wholly untenable in law. The same is not only unnatural but
also improbable. Therefore, the inordinate delay of 11 days in
lodging the FIR against the appellant is fatal to the prosecution
case. This vital aspect regarding inordinate delay in lodging the
FIR not only makes the prosecution case improbable to accept
but the reasons and observations made by the trial court as
well as the High Court in the impugned judgments are wholly
untenable in law and the same cannot be accepted. Therefore,
the findings and observations made by the courts below in
accepting delay in lodging the FIR by assigning unsatisfactory
reasons cannot be accepted by this Court as the findings and
reasons are erroneous in law."
35. The same view has been reiterated in Tulshidas Kanolkar
v. State of Goa7. Paragraph 5 reads thus:
"We shall first deal with the question of delay. The unusual
circumstances satisfactorily explained the delay in lodging of
the first information report. In any event, delay per se is not a
mitigating circumstance for the accused when accusations of
rape are involved. Delay in lodging the first information report
cannot be used as a ritualistic formula for discarding the
prosecution case and doubting its authenticity. It only puts the
court on guard to search for and consider if any explanation
has been offered for the delay. Once it is offered, the court is
to only see whether it is satisfactory or not. In case if the
(2003)8 SCC 590
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prosecution fails to satisfactorily explain the delay and there is
possibility of embellishment or exaggeration in the
prosecution version on account of such delay, it is a relevant
factor. On the other hand, satisfactory explanation of the delay
is weighty enough to reject the plea of false implication or
vulnerability of the prosecution case. As the factual scenario
shows, the victim was totally unaware of the catastrophe
which had befallen her. That being so, the mere delay in
lodging of the first information report does not in any way
render the prosecution version brittle."
36. In State (GNCT of Delhi) v. Vipin @ Lalla8, the Apex
Court observed that if the delay in lodging the FIR is not reasonably
explained, it contributes to doubts regarding the credibility of the claim
and ultimately impacts the prosecution's case. In xxxx v. State of
Kerala and Others9, this Court observed that, in a case alleging the rape
of a 10 year old girl, delay of almost 10 months in lodging FIS is fatal to the
prosecution's case, as the delay was not properly explained, upon
evaluating the facts and circumstances of the case.
37. In the instant case, the alleged incident was on 23.10.2019.
The parents of the victim got information about the incident on that day
itself. But no complaint was lodged before the police. The SI of Police,
2025 KHC 7043
2022(2) KHC 725
2025:KER:35848
Vazhakkulam Police Station registered the FIR on 07.11.2019 on the basis
of Ext.P1 FIS. No explanation, whatsoever, is offered for the delay of two
weeks in lodging the FIS. On 06.11.2019, the victim was taken to PW16,
Dr.Tessiyamma Sebastian. It is pertinent to note that, PW16, the doctor,
who examined the victim, gave information to the police.
38. Adv.Saipooja submits that the foundational facts leading to the
alleged crime were not proved by the prosecution beyond reasonable doubt
and therefore, trial court has committed grave error in invoking the
presumption under Section 29 of the POCSO Act. She further submitted
that there is no authentic proof with regard to the age of the victim at the
time of the alleged incident. The prosecution mainly relied on the evidence
of PWs.13, 14 and 15 for proving the age of the victim.
39. PW13, Sanuja A. Shawn is the Headmistress of GHSS,
Kongorppilly. As per Ext.P12 extract of admission register, victim was
admitted to the school in 2013 in 1st standard as admission no.10433. As
per which, the date of birth of the victim is 15.03.2007. In cross
examination, PW13 stated that the victim dropped out in the 1st standard
itself. She has not produced any authentic document to prove the age of the
victim. PW15, Jince Cyriac, is the Registrar of Births and Deaths who
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issued ExtP13 Birth Certificate. In Ext.P13, the name of the parents, house
name and the place of birth are not seen stated.
40. The next submission of the learned counsel for the appellant is
that the eye witness who allegedly saw the incident, Kanakaraj (CW2) was
not examined. The said Kanakaraj died prior to the trial of this case. Even
though the copy of the death certificate (Ext.P15) is produced by the
prosecution, it was marked subject to proof.According to Adv.Saipooja,
non-examination of CW2 is fatal in this case.
41. Yet another interesting aspect pointed out by the learned
counsel for the accused is that, according to the victim, she had bitten the
hands of the accused during the incident. But, the doctor who examined the
accused has not noted a corresponding bite mark, if any, on the hands of
the accused.
42. Adv.Saipooja submitted that the voir dire test conducted by
the Special Judge in this case is insufficient and the learned Special Judge
had failed to note his satisfaction that the victim was aware of his duty to
speak the truth in the Court. Learned counsel placed reliance on a
judgment in Pradeep v. State of Haryana10. In Pradeep's case (supra)
2023 SCC OnLine SC 777
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the Apex Court observed that the conviction solely on the basis of the
testimony of a child witness is unsafe.
43. On the entire reassessment and judicial evaluation of the
evidence on record, both oral and documentary, we are of the considered
opinion that the prosecution has failed to allege and prove the charge
against the accused beyond reasonable doubt. Admittedly, the name of the
accused has not been stated by any of the material witnesses, including the
victim. The accused was identified through video conferencing and not in
the dock by the victim. No Test Identification Parade was conducted in this
case. The arrest of the accused is not properly proved by preparing the
contemporaneous documents like arrest memo, arrest intimation and
inspection memo violating the directive of the Hon'ble Apex Court in D. K.
Basu's case (supra).
The unexplained delay of 15 days in lodging the FIS would also cast
serious doubts in the prosecution story. The trial court, while convicting
the accused, has overlooked vital illegalities and infirmities which cuts the
very root of the prosecution story. We are of the firm view that the accused
is entitled to get the benefit of doubt in this case. The involvement of the
accused in the alleged crime is not proved by the prosecution beyond
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reasonable doubt. The conviction entered and the sentence imposed by
the trial court are legally unsustainable in our view.
In the result,
(i) Criminal Appeal is allowed.
(ii) The impugned judgment of the learned Special Judge
in S.C.No.284/2020 is set aside.
(iii) The appellant/accused is acquitted and he is set at
liberty.
(iv) The bail bond, if any, executed by the accused stands
cancelled.
(v) Fine, if any, paid by him shall be refunded.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K.V. JAYAKUMAR,
JUDGE
Sbna/-
