Kerala High Court
State Of Kerala vs Deepak @ Deepu on 29 February, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934
CRL.A.No. 106 of 2005 (D)
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AGAINST THE ORDER/JUDGMENT IN SC.NO.133/1998 OF
ASSISTANT SESSIONS COURT,NORTH PARAVUR DATED 29-02-2000
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AGAINST THE ORDER/JUDGMENT IN CP.NO.10/1997 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT II, ALUVA
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(CR.NO.83/97 OF KALAMASSERY POLICE STATION)
...
APPELLANT(S)/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUOTR, HIGH COURT OF KERALA, ERNAKULAM.
RESPONDENT(S)/ACCUSED:
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DEEPAK @ DEEPU, S/O. GOPI,
KATTIPARAMBIL, VETTEKUNNAM KARA,
THRIKKAKARA NORTH VILLAGE.
BY ADVS. SRI.P.B.ASOKAN
SRI.SANU MATHEW
SRI.GEORGE C.VARGHESE
SRI.P.B.AJOY
SRI.R.SRINATH
SRI.S.SREEKUMAR (ADUKKATH)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 19-03-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Kss
P. BHAVADASAN, J.
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Crl.Appeal. No. 106 of 2005
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Dated this the 19th day of March, 2013.
JUDGMENT
This appeal by the State challenges the acquittal of the accused for the offences punishable under Section 511 of Section 376(2) (f) and 506(ii) of Indian Penal Code.
2. P.W.2 is the victim in this case and P.Ws.1 and 3 are her parents. The incident is said to have taken place on 12.4.1997 at about 12'o clock in the noon. On that day, as usual the father of the victim had gone for work. The mother, who runs a petty shop, had gone to purchase articles for the shop. The allegation is that during that period the accused invited the little girl to watch TV in his house and the girl went there. No sooner than she entered into the house, she was made to lie on a cot and she was brutally ravished. The further allegation is that hearing the cry of the child, P.W.3 came from the shop and ascertained the reason and she was told that the child had been sexually assaulted. The victim was taken to the hospital and the Crl.Appeal. 106/2005.
2doctor there examined her. She was admitted for a day in the hospital and on the next day she was discharged from the hospital. P.W.1 on 14.4.1997 at 8.30 p.m. laid Ext.P1 first information statement before the Kalamassery Police Station. P.W.1, the Sub Inspector of Police, recorded Ext.P1 FIS and registered crime as per Ext.P1(a) FIR. P.W.15 took over investigation. He had Ext.P4 scene mahazar prepared and had M.O.3 bed sheet seized from the place of occurrence. He had M.Os. 1 and 2, the dresses alleged to have been worn by the victim at the relevant time seized as per Ext.P5. As per Ext.P6(a) confession statement made by the accused on questioning him, P.W.15 seized M.O.4 knife as per Ext.P6 mahazar. He had Ext.P2 document obtained from the Medical Centre Hospital, Palarivattom where the victim was admitted and had undergone treatment for a day. He then had the victim examined at the Government Hospital, Ernakulam and obtained Ext.P10 certificate. After the arrest of the accused, he had him subjected to potency Crl.Appeal. 106/2005.
3test and obtained Ext.P9 certificate. He recorded the statements of witness and found that no offence under Section 376 had been made out during investigation and only offence under Section 511 of Section 376 was made out. Therefore, he filed a report before the court concerned seeking to have the offences altered to one under Section 511 of Section 376 and 506(ii) I.P.C. After investigation he laid final charge before court.
3. JFCM-II, Aluva, before whom final charge was laid took cognizance of the offences. Finding that the offence is one exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Ernakulam under Section 209 Cr.P.C. The said court made over the case to Assistant Sessions Court, North Paravur for trial and disposal.
4. The latter court, on receipt of records and on appearance of accused, framed charge for the offences under sections 511 of Section 376(2)(f) and Section 506(ii) Crl.Appeal. 106/2005.
4I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws.1 to 15 examined and Exts.P1 to P11 marked. M.Os. 1 to 4 were identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out against him and maintained that he is innocent. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence.
5. On an appreciation of the evidence in the case, the trial court found that the the evidence of P.W.2, the victim in this case, could not be safely accepted. According to the lower court, the child witness appeared to be a tutored witness and there was no supporting evidence to corroborate the version given by P.W.2. The court below found that there was a reasonable doubt regarding the case put forward by the prosecution and extended the benefit of Crl.Appeal. 106/2005.
5doubt to the accused and acquitted him of all charges levelled against him.
6. Learned Public Prosecutor assailing the acquittal pointed out that the court below was not justified in acquitting the accused. May be that the offence alleged have not been made out. But a lesser offence has been made out. There was no justification for the lower court to come to the conclusion that P.W.2 was a tutored witness. None of the reasons given by the lower court is justified. Evidence of P.W. 1 and 3, the parents of the victim is sufficiently corroborated by the evidence of P.W.4 who had seen the child immediately after the incident and who had occasion to wash the child and these aspects have been omitted to be noticed by the court below. Emphasis was laid on the fact that M.O.3 bed sheet seized at the time of preparation of scene mahazar and M.Os. 1 and 2, the clothes said to have been worn by the victim were handed over for examination and Exts. P4 and P5 mahazars showed Crl.Appeal. 106/2005.
6blood stains which corroborated the evidence of P.W.2. These vital pieces of evidence have been been omitted to be noticed by the court below. It is also pointed out that the accused is a close neighbour of the victim and no reason whatsoever is put forward to show that P.Ws.1 to 3 had any reason to falsely implicate him. Merely because the medical evidence may not be in support of the prosecution, it is not a ground to reject the evidence of P.W.2, the child witness who has given a cogent and convincing version regarding the incident.
7. Learned Public Prosecutor invited the attention of this court to paragraph 13 of the judgment of the court below and pointed out that the principle of law mentioned therein cannot be accepted. By no stretch of imagination, the victim of rape can be considered as an accomplice. It was on that basis that evidence was evaluated and therefore it is pointed out that the findings are totally unacceptable both in law and on facts. At any rate, according to the Crl.Appeal. 106/2005.
7learned Public Prosecutor, going by Ext.P10 and the evidence of P.W.15, offence under Section 354 I.P.C. is clearly made out.
8. Learned counsel appearing for the accused on the other hand reminded this court that this court is sitting in appeal against an order of acquittal and the principles of appreciating the evidence are well laid down in various decisions of the Apex Court. The court below which had the occasion to watch the demeanor of witnesses has chosen to disbelieve them and unless it is shown that the findings are perverse or erroneous, merely because another view is possible, this court will not be justified in interfering with the order of acquittal.
9. Learned counsel then went on to point out that even if the prosecution had a case that there was no attempt to commit rape, the evidence was adduced in such a manner that actual rape had infact been committed and the evidence of P.W.2 gives a graphic description of the Crl.Appeal. 106/2005.
8incident which would reveal that the prosecution was trying to establish the offence under Section 376 I.P.C. It was these factors which had persuaded the court below to come to the conclusion that P.W.2, the child witness, could have been a tutored witness. Learned counsel also pointed out that there was no quarrel with the proposition that if the evidence of prosecutrix is cogent, convincing and of a sterling character, that can form the basis of conviction. But in the case on hand, the evidence of the prosecutrix is belied by the other evidence in the case, therefore the principle cannot apply. The medical and forensic evidence in this case clearly belie the version given by the prosecutrix. There is nothing to show that the victim had suffered any injury as claimed by P.W.1 to 3 or there was profuse bleeding as claimed by them and in fact these claims made by P.Ws.1 to 3 are belied by the medical evidence. As far as the entry in Ext.P10 is concerned, learned counsel pointed out that that entry was not specifically put to the accused Crl.Appeal. 106/2005.
9and that version said to have been given by P.W.2 was not put to that witness to ascertain why she had given such a version to the doctor concerned. In the absence of any such evidence, that entry cannot be relied on to come to the conclusion that offence under Section 354 I.P.C. is made out.
10. Learned counsel also pointed out that a close scrutiny of the evidence will show that there was an attempt to make embellishments and developments at each stage and that makes the prosecution evidence extremely vulnerable especially when the medical evidence and the forensic evidence are against the prosecution. There is nothing to show that the view taken by the court below is contrary to the evidence on record or is so perverse that it calls for interference. At any rate, it is a possible view and if that be so, interference with the acquittal is not warranted.
11. P.W.2 is the victim in this case. The victim was aged only 7 years at the relevant time. P.W.1 is the father of the victim and P.W.3 is her mother. The evidence Crl.Appeal. 106/2005.
10regarding the offence is furnished by P.W.2 with the supporting evidence of P.Ws.1, 3 and 4. P.W.2 gives a graphic description of what transpired on the relevant date. She would say that her father had gone for work and her mother had gone out to purchase articles for the shop. She would say that she was called to the house of the accused to watch TV. She went there and the accused made her to lie on a cot and ravished her. At the time of evidence, she would say that she was frightened with a knife so as not to reveal the incident to anybody and she would say that there was profuse bleeding from her private part. She would also say that she washed herself thereafter. The evidence of P.W.4 is to the effect that she happened to see the child washing herself and she went to the aid of the child. Surprisingly enough, no question was put to P.W.4 as to what she had seen or what had been washed off from the body of the child. The only statement made by P.W.4 is that she helped the child in washing herself. She does not speak Crl.Appeal. 106/2005.
11of having seen blood or anything else in the body of the child.
12. The evidence of P.W.1 is to the effect that he was called from his work place by his wife by giving information about the mishap that had fallen on the child. When he came home, he was told about the incident and he had taken the child to the hospital. P.W.3 would say that when she reached home, she came across a few ladies in the nearby houses and they say that something had happened to the child. P.W.3 would say that she had found that there was bleeding from the private parts of the child. P.W.3 then says that she had seen scratch marks on the chest and private parts of the child.
13. It is true that Ext.P4 scene mahazar prepared by P.W.15 during which the bed sheet was seized, it is stated in the said document that blood stains were found on the bed sheet. Ext.P5 is the mahazar by which M.Os.1 and 3 were seized. That document also makes mention of Crl.Appeal. 106/2005.
12presence of blood stains in the clothes handed over to the investigating officer by the father of the victim.
14. Ext.P2 is the medical records maintained in Ernakulam Medical Centre where the child was initially taken for treatment. The entry shows that the child was brought to the hospital with history of previous bleeding. But the doctor who first examined her had stated that he did not find any signs of bleeding and it was also noticed in the medical records that the child was not willing for a local examination and the parents were also not willing to have the child locally examined. The child was later examined by a Pediatrician and a Gynecologist. Both of them could not notice any bleeding or injury on the body of the child or on her private parts.
15. After the investigation was taken over by P.W.15, he had the child examined by Dr. Sulekha, who issued Ext.P10 certificate. Ext.P10 certificate however makes mention of a scratch mark in the private part. Crl.Appeal. 106/2005.
13However, the alleged cause as is seen mentioned in Ext.P10 alleged to have been given by the victim herself is as follows:
"
on 12.4.1997 at 12 noon."
16. The bed sheet as well as the clothes alleged to have been worn by the victim were sent for chemical examination to ascertain whether blood stains were present as well as spermatozoa. But surprisingly enough Ext.P11 report from the forensic lab only makes mention of absence of spermatozoa on items Nos.1 to 3 and does not say anything about the blood stains which the investigating officer has noticed while seizing M.Os. 1 to 3. There was no attempt from the part of the investigating officer or from the court to ascertain as to how this lacuna has occurred. As of Crl.Appeal. 106/2005.
14now there is nothing to show that blood stains were detected on M.Os. 1 to 3.
17. In the decision reported in K. Venkateshwarlu v. State of Andhra Pradesh ((2012) 8 SCC 73), it was held as follows:
"The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for Crl.Appeal. 106/2005.15
corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it."
18. As already noticed, the evidence regarding the incident in this case consists of the version given by P.W.2 alone. Recalling the evidence of P.Ws.1 to 3, the child was profusely bleeding after the incident and that is why they had taken the child to the hospital. However the medical records Ext.P2 do not support the claim of P.Ws.1 to
3. As rightly pointed out by the learned counsel for the accused, the version given by P.W.2 that she was threatened Crl.Appeal. 106/2005.
16with a knife appears for the first time while giving evidence and was conspicuously absent in any other records. Going by the version given by P.W.2, it would appear that there was penetration, which is also belied by the medical evidence. Therefore, this a case where the evidence of the prosecutrix does not get support form the medical evidence at all and in fact belies her version. Applying the principle in the decision referred to above, it becomes impossible to place implicit faith on the evidence of P.W.2.
19. One may notice here that going by the prosecution case, when P.W.4 saw the child, the child was seen washing off blood. At the time of evidence, there was no attempt from the side of the prosecution to show that the witness had narrated the incident as claimed by the prosecution and the only evidence given by P.W.4 was that she had helped the child to wash herself.
20. It was the above facts and circumstances which make the trial court to suspect the prosecution case. Crl.Appeal. 106/2005.
17Of course, there is no suggestion to P.Ws.1 to 3 to the effect that the accused had been falsely implicated due to political rivalry.
21. Learned Public Prosecutor pointed out that it is rather inconceivable that a mother would allow her child to be used as a victim of sexual assault to wreak political vengeance and that aspect has been omitted to be noticed by the trial court .
22. As to what prompted P.W.2 to give evidence as she did etc. are not matters for consideration now. The evidence of P.W.2 will have to be analysed in the light of the other circumstances in the case since there are other evidence attempted by the prosecution to gain support to the evidence furnished by P.W.2. Of course, one has to remember that in a case of rape, one has to considerably depend upon the evidence of the prosecutrix, for, rape is never done in open or on invitation. But, as rightly noticed by the learned counsel for the accused, the evidence of the Crl.Appeal. 106/2005.
18prosecutrix must be of such a high standard, that it could be believed. Bearing the above principles in mind, the court below felt that it is not safe to rely on her evidence.
23. One may remind oneself of the power of the appellate court as laid down by the Apex Court in the decision reported in K.Venkateshwarlu's case (supra) wherein it was held as follows:
"This court has repeatedly stated what should be the approach of the High Court while dealing with an appeal against acquittal. If the view taken by the trial court is a reasonably possible view, the High Court cannot set it aside and substitute it by its own view merely because that view is also possible on the facts of the case. The High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. Unless the Crl.Appeal. 106/2005.19
order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it. Crime may be heinous, morally repulsive and extremely shocking, but moral considerations cannot be a substitute for legal evidence and the accused cannot be convicted on moral considerations. The present appeal needs to be examined in the light of the above principles."
24. Considering the evidence in its totality, it could not be said that the court below has erred in any manner in refusing to place complete faith in the evidence of P.W.2, the victim. May be that the court had gone a little too far characterizing the child as a tutored witness. However, unlike in normal cases, the other items of evidence adduced by the prosecution do not go along with the evidence of P.W.2 and that aspect cannot be overlooked. Crl.Appeal. 106/2005.
20
25. Coming to the question as to whether offence under Section 354 of I.P.C. is made out, it is equally difficult to accept the plea raised by the learned Public Prosecutor. Learned Public Prosecutor relied on the entry in Ext.P10 to support his contention. But there is no such case for P.W.2 and P.W.2 has an entirely different version. Further, as rightly pointed out by the learned counsel for the accused, the entry in Ext.P10 is not specifically put to the accused when questioned under Section 313 Cr.P.C.
26. Thus, it could be seen that on an appreciation of the evidence, it is not possible to say that the findings entered into by the court below are either perverse or totally contrary to the evidence on record so as to warrant interference in the appellate jurisdiction. Probably a different view may be possible. But that is not a ground to interfere with the order of acquittal passed by the court below which has the facility to watch the demeanor of the witnesses.
Crl.Appeal. 106/2005.
21
In the result, this court finds no merits in the appeal. The appeal is only to be dismissed. I do so.
P. BHAVADASAN, JUDGE sb.