Kerala High Court
Kandamuthan vs State Of Kerala on 29 June, 2020
Equivalent citations: AIRONLINE 2020 KER 455
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942
CRL.A.No.284 OF 2019
AGAINST THE JUDGMENT IN S.C.NO.746/2016 OF ASSISTANT
SESSIONS COURT (ADDITIONAL), PALAKKAD DATED 15.02.2019
APPELLANT/ACCUSED:
KANDAMUTHAN,
AGED 81 YEARS
S/O KANDANKUTTY, RESIDING AT AVAYAMVEEDU,
PALLAM, MUTHALAMADA P.O.
CHITTUR, PALAKKAD - 678 507
BY ADVS.
SRI.K.ANAND
SRI.BENNY ANTONY PAREL
SRI.N.RAJESH (PALAKKAD)
SRI.T.M.MUHAMMED HAFEES
RESPONDENT/STATE & COMPLAINANT:
STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
AGAINST WOMEN & CHILDREN & WELFARE OF W & C
SMT. PUSHPALATHA.M.K, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18-06-2020, THE COURT ON 29-06-2020 DELIVERED THE
FOLLOWING:
Crl.A. No.284 of 2019
..2..
P.B.SURESH KUMAR, J.
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Criminal Appeal No.284 of 2019
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Dated this the 29th day of June, 2020
JUDGMENT
This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C. No.746 of 2016 on the files of the Assistant Sessions Court (Additional), Palakkad. The appellant is the sole accused in the case.
2. The victim in the case is a lady aged 35 years suffering from metal retardation. The accused is none other than the father-in-law of one of the brothers of the victim lady. The accusation in the case is that on 23.04.2015, at about 13.00 hours, the accused raped the victim lady and thereby committed the offences punishable under Sections 376(2)(f) and 376(2)(l) of the Indian Penal Code (the IPC).
3. On the accused pleading not guilty of the charges framed against him, the prosecution examined 19 witnesses as PW1 to PW19 and proved 13 documents as Exts.P1 to P13. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as Crl.A. No.284 of 2019 ..3..
regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence.
4. Among the witnesses examined on the side of the prosecution, PW1 is the wife of the brother of the victim lady with whom the victim lady is residing. PW1 proved Ext.P1 First Information Statement. PW2 is the Counsellor attached to the District Hospital, Palakkad who has given counselling to the victim lady on a reference made by the police. PW3 is the victim lady herself. PW3 proved Ext.P2 statement given by her under Section 164 of the Code. PW4 is the sister of the victim lady. She proved Ext.P3 mahazar. As she turned hostile to the prosecution, Exts.P4 and P5 contradictions have been proved by the prosecution through her. PW5 is a brother of the victim lady. He proved Ext.P6 mahazar. PW6 is the sister of the victim lady. PW7 is another brother of the victim lady. PW8 is another brother of the victim lady. PW9 is a neighbour of the accused. PW10 is another neighbour of the accused. PW11 is Crl.A. No.284 of 2019 ..4..
the witness to Ext.P6 mahazar. PW12 is the Village official who issued Ext.P7 site plan. PW13 is the official of the local authority who issued Ext.P8 certificate pertaining to the ownership of the building of the accused. PW14 is the doctor who examined the victim lady and issued Ext.P9 report. PW15 is the police official who recorded Ext.P1 First Information Statement from PW1. PW16 is the police official who conducted part of the investigation in the case. PW16 proved Ext.P10 arrest memo, Ext.P10(a) inspection memo, Ext.P10(b) remand report, Ext.P11 potency certificate and Ext.P12 seizure mahazar. PW17 is the police official who conducted the remaining part of investigation. He proved Ext.P13 property list. PW18 is the police official who submitted the final report in the case. PW19 is the police official who registered the First Information Report in the case.
5. On an appraisal of the materials on record, the court below found that the prosecution has established the guilt of the accused under Sections 376(2)(f) and 376(2)(l) of the IPC, convicted and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous Crl.A. No.284 of 2019 ..5..
imprisonment for one year for offences aforesaid. The appellant is aggrieved by his conviction and sentence.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. The learned counsel for the appellant submitted that the only evidence, on the basis of which the accused is convicted, is the evidence tendered by the victim lady. Referring to the evidence tendered by the victim lady as also the demeanor of the victim lady recorded by the court below in the proceedings, it was argued by the learned counsel that the victim lady can never be construed as a witness who is competent to give evidence in terms of Section 118 of the Indian Evidence Act and the conviction of the accused is therefore unsustainable.
8. Per contra, the learned Public Prosecutor submitted that the evidence of the victim lady is not liable to be ignored merely for the reason that she is an intellectually weak person. According to the learned Public Prosecutor, the requirement of law is only that in such cases, the court will have to be careful in placing reliance on the evidence. It was the submission of the learned Public Prosecutor that if the Crl.A. No.284 of 2019 ..6..
evidence tendered by the victim lady is understood in the backdrop of the evidence tendered by PW2, the Counsellor attached to the District Hospital, Palakkad, PW14, the doctor who examined the victim lady and PWs.9 and 10, the neighbours of the accused, it could be seen that what is communicated by the victim lady to the court is reliable and truthful. According to the learned Public Prosecutor, the court below, in the circumstances, cannot be found fault with for having convicted the accused.
9. Having heard the learned counsel for the parties on either side and having perused the materials on record, it is seen that the point arising for consideration is whether the prosecution has proved the guilt of the accused under Sections 376(2)(f) and 376(2)(l) of the IPC beyond reasonable doubt.
10. Before I proceed to consider the contention raised by the learned counsel for the appellant, I must mention that other than the official witnesses, the prosecution examined only the siblings of the victim, a sister- in-law of the victim who lodged the First Information Statement in the case and two neighbours of the accused. The alleged place of Crl.A. No.284 of 2019 ..7..
occurrence is the house of the accused. The sister-in-law of the victim and the siblings of the victim lady all turned hostile. Though these witnesses were cross examined by the Public Prosecutor, the efforts taken in this regard were futile. What remains is the evidence of the Counsellor attached to the District Hospital, Palakkad, the evidence of the victim lady, the evidence of the neighbours of the accused and the evidence of the doctor who examined the victim lady. I shall now refer to the same.
11. PW2, the Counsellor attached to the District Hospital, Palakkad deposed that the victim lady was brought to her by the police for counselling. She deposed that when she interacted with her, the victim lady told her that she was physically assaulted by one person called Achachan. She deposed that the victim lady was not competent or capable of informing her relationship with the person who is stated to have assaulted her. PW2 deposed that the victim lady told her that the assailant has grabbed her breast. She deposed that the victim lady was taking lot of time while narrating the occurrence to her. She deposed that the assailant has touched her private parts. She deposed that the victim lady has not Crl.A. No.284 of 2019 ..8..
told her anything about penetration. The prosecution has cross examined PW2 after declaring her hostile. In cross examination, PW2 has admitted that she has stated to the Police that she was satisfied that the victim was subjected to rape.
12. Coming to the evidence of the victim lady, as the court found that the victim lady was not in a position to communicate properly, the brother of the victim lady with whom she is presently residing and who is able to understand her gestures and speech properly, was engaged by the court as an interpreter. The court below has assessed the competency of the victim lady to give evidence. One of the questions put by the court to the victim lady to assess her competency was as regards her age. The answer was five. Despite the said answer, the court has recorded her evidence on the premise that she is in a position to understand the questions put to her and give rational answers for the same. PW3 deposed that the accused is Muthappan. She deposed that the accused assaulted her. She deposed that one day the accused took her to a room and touched her private parts. She deposed that he inserted his finger and has not done anything Crl.A. No.284 of 2019 ..9..
else. She deposed that the accused has not touched any other part of her body. She deposed that the accused did so twice. She deposed that she complained to her brother, Unnikannan. She deposed that she was thereafter taken to the hospital. She deposed that she was questioned by the police. It was recorded by the court below that she was laughing at that point of time and after pointing her finger to the Public Prosecutor, she said that she likes him. She deposed thereafter that she gave statements earlier and identified Ext.P2. After some time, she said that the signature in Ext.P2 is not her signature. The court below has recorded thereafter that "The witness is so childish and her gestures are child like. Not at all matured". Thereafter, she deposed that an elder lady questioned her in the hospital.
13. PW9, the neighbour of the accused deposed that the victim lady was staying in the house of the accused for about three months. Similar is the evidence given by PW10 also. PW14 is the doctor who examined the victim lady. She deposed that she found evidence of past vaginal penetration on examination.
14. As noted, it is placing reliance on the evidence Crl.A. No.284 of 2019 ..10..
of the aforesaid witnesses that the prosecution attempts to prove the guilt of the accused. The pointed question, therefore, is as to whether the finding arrived at by the court below from the aforesaid evidence that the prosecution has proved the guilt of the accused beyond reasonable doubt, is correct. As noted, the only contention raised by the learned counsel for the appellant is that the victim cannot be said to be a witness who is competent to give evidence in terms of Section 118 of the Indian Evidence Act. 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 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.
In terms of the extracted provision, 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 Crl.A. No.284 of 2019 ..11..
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 proceedings 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, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. I shall now make an endeavour to consider that question.
15. As noted, to a specific question put by the court as to the age, the answer of the victim lady who is aged 35 years was that she is aged only five years. Another question put by the court in the course of her chief examination is as to the date on which she came to the court and her answer was
44. Similarly, as noted, the victim lady was not able to communicate properly and the Court had to engage an interpreter for her. Further, though the court below has Crl.A. No.284 of 2019 ..12..
recorded initially that the victim lady is not in a position to give rational answers to the questions put to her, in the later portion of the evidence, the court below has recorded that the witness is so childish and the gestures are child like and not at all matured. The court below has also recorded that in the course of the evidence, the victim lady was laughing inappropriately and has also stated that she likes the Prosecutor after pointing her finger towards him. Further, as noted, she initially owned her signature in Ext.P2, but later disowned. On a close scrutiny of the evidence tendered by the victim lady, I am of the view that the victim lady is not a person who is competent to give evidence.
16. Be that as it may. After the amendment to the IPC in terms of Act 13 of 2013, insertion of any part of the body, not being penis, into the vagina would constitute rape, if it is against the will of the victim or without her consent. Going by the definition of 'rape' as contained in Section 375 of the IPC, if the victim is a person who is unable to communicate consent, it is not necessary for the prosecution to establish the same. Assuming that the victim lady is a person who is unable to give consent, still the actual insertion of the finger by the Crl.A. No.284 of 2019 ..13..
accused into the vagina of the victim lady has to be proved by the prosecution. As noted, in the case on hand, the only evidence for the said overt act is the evidence tendered by the victim lady. I do not think that it is safe to convict a person on a charge of rape solely based on the evidence in the nature of one given by the victim lady in the case on hand. In other words, in a case of this nature, one has to see whether the remaining evidence in the matter is sufficient to justify the conviction of the accused. As noted, other than the evidence of PW3, we have only the evidence of two neighbours of the accused who only said that they have seen the victim lady in the house of the accused. As noted, the court below found that the victim lady was not in a position to communicate with others. If that be so, it is doubtful as to how PW2, the Counsellor attached to the District Hospital, Palakkad has communicated with the victim lady especially since she has no case that she communicated with the victim lady through an interpreter. If a stranger cannot communicate with the victim lady, it is not safe to place reliance on the evidence tendered by PW2 that the victim lady told her that the assailant had grabbed her breast and touched her private parts. Of course, Crl.A. No.284 of 2019 ..14..
PW14 has stated that she found evidence of past vaginal penetration on examination of the victim lady and proved Ext.P9 report of medical examination issued by her to that affect. But it is seen that PW14 has not shown in Ext.P9, the reasons, on the basis of which she arrived at the conclusion, which is mandatory in terms of sub-section (3) of Section 164A of the Code. As such, according to me, the evidence tendered by PW14 also is not of any help to the prosecution. Needless to say, the accused is entitled to the benefit of doubt.
In the result, the Criminal Appeal is allowed. The conviction of the appellant and the sentence imposed on him by the Court of Session are set aside and he is acquitted. He shall be set at liberty forthwith and released from custody, if his continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the concerned prison, where the appellant is undergoing incarceration.
Sd/-
P.B.SURESH KUMAR JUDGE ds 22.06.2020