Kerala High Court
Mariyappan @ Mari vs State Of Kerala on 29 March, 2021
Author: K.Haripal
Bench: K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943
CRL.A.No.514 OF 2020
AGAINST THE JUDGMENT IN SC 91/2018 DATED 06-02-2019 OF SPECIAL COURT
UNDER POCSO ACT, ALAPPUZHA
CRIME NO.530/2017 OF Ramankary Police Station , Alappuzha
APPELLANT/ACCUSED:
MARIYAPPAN @ MARI
AGED 27 YEARS,S/O.AYYAPPAN,
C.NO.3297,CENTRAL PRISON & CORRECTIONAL HOME,
POOJAPPURA, THIRUVANANTHAPURAM, RESIDED AT MARUKAALTHAI
COLONY NO.123, MALLOOR, SHUSHEENDRAM, NAGARKOVIL,
TAMIL NADU STATE.
BY ADV. PRASANTH M.P.(STATE BRIEF)
RESPONDENT/COMPLAINANT:
1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
2. THE INSPECTOR OF POLICE, RAMANKARY POLICE STATION.
R1 BY SMT.AMBIKA DEVI S, SPL.GP, ATROCITIES AGAINST
WOMEN AND CHILDREN AND WELFARE OF W AND C
OTHER PRESENT:
SR.PP - SRI. K.B.UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2021,
THE COURT ON 29-03-2021 DELIVERED THE FOLLOWING:
Crl.A.514/2020 2
JUDGMENT
This is an appeal preferred under Sections 374(2) and 383 of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging the legality and correctness of the judgment of the Additional Sessions Court-I, Alappuzha, who is the Special Judge for trial of offences under the Protection of Children from Sexual Offences Act & Children's Court, Alappuzha, in S.C. No.91/2018. The appellant faced charges under Section 376(2)(i)(j)(n) of the Indian Penal Code, hereinafter referred to as the IPC, and Section 5(j)(ii)(l)(q) read with Section 6 of the, 2012, hereinafter referred to as the PoCSO Act. The precise allegation against the appellant is that on 13.09.2016 the appellant had tied a yellow thread around the neck of the 15 year old minor victim, CW1, at the Pudalamadaswamy temple at Marukalthalai in Nagarkovil, making her believe that he had married the girl and from that day onwards till 11.08.2017, for about eleven months, stayed with her and committed rape on her. The act of sexual offence started from Crl.A.514/2020 3 house No.123 of Marukathalai colony in Nagakovil district in Tamil Nadu State continued till 11.08.2017 in house No.VII/127 of Koothappally colony in Kidangara village; consequent to the said continuous act of sexual intercourse, CW1 became pregnant; she was also subjected to continuous physical harassment and thus he committed offence punishable under the above stated provisions and also under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Crime 530/2017 of Ramankari police station was registered on the basis of first information statement given by the minor girl. After investigation, the Circle Inspector, Pulinkunnu police station laid charge sheet before the Special Judge, on the basis of which S.C. No.91/2018 was taken on file. The appellant was arrested on 16.09.2017 and ever since he continues in judicial custody.
2. After completing the procedural formalities when the charge was framed, read over and explained, the appellant pleaded not guilty. He was defended by a counsel of his choice. Seventeen witnesses were examined on the side of the prosecution as PWs 1 to 17. Exts.P1 to Crl.A.514/2020 4 P16 were marked. On conclusion of evidence, when examined under Section 313 Cr.P.C., he denied all the incriminating materials. As the learned Special Judge found that it is not a fit case for acquittal under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence; no evidence was adduced. Thereafter, by the impugned judgment, repelling the plea of innocence, the Special Judge found the appellant guilty of offences under Section 376(2)(i)(j)(n) of the IPC and Section 5(j)(ii)(l)(q) read with Section 6 of the PoCSO Act. After hearing him on sentence, the following sentences were imposed on him:-
a) Under Section 376(2)(i) of IPC, he is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, and in default to undergo simple imprisonment for two years;
b) Under Section 376(2)(j) of IPC, he is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, and in default to undergo simple imprisonment for two years;
c) Under Section 376(2)(n) of IPC also, the very same sentences are Crl.A.514/2020 5 imposed on him, and substantive sentences are directed to run concurrently.
The right of set-off for the period already undergone in judicial custody is also mentioned. No separate sentence is awarded under Section 5(j)
(ii) (l)(q)read with Section 6 of the PoCSO Act. The appellant is suffering the sentence in Central Prison, Poojappura, Thiruvananthapuram, from where this memorandum of appeal was preferred. Following the receipt of the appeal memorandum, Adv.Sri.M.P. Prasanth was appointed as the State Brief. As the appellant is continuing in custody ever from the date of arrest, the appeal has been taken out of turn.
3. I heard Sri.M.P.Prasanth for the appellant and also Adv.Sri.K.B. Udayakumar, the Senior Public Prosecutor for the respondent.
4. The learned counsel for the appellant submitted that this is a case in which the trial court proceeded to convict the appellant even though all the material witnesses, including the prosecutrix, had turned Crl.A.514/2020 6 hostile to the prosecution. The conviction has been entered solely basing on the Ext.P4 document. But he pointed out that Ext.P4 is not admissible in evidence since Section 293 Cr.P.C. is not applicable in respect of a certificate issued by the Scientific Officer of the State Forensic Laboratory. According to him, there are other lacunae also in the prosecution evidence. Even though it has come out through PW9 that she had conducted Medical Termination of Pregnancy (MTP) on the girl, who was at the time pregnant having gestation 13 weeks and 4 days, there is nothing in evidence to say that her blood sample was collected while conducting MTP. He also attacked the prosecution for not producing the property list. PW1 was not examined with reference to her statement or the statement which might have been recorded under Section 164 Cr.P.C. The learned counsel pointed out that there is no link evidence to say that Ext.P4 relates to the sample collected from the foetus or the blood of PW1. So the counsel submitted that in the absence of property list and mahazar, without proper proof of Ext.P4, the appellant ought not to have been convicted by the trial court. Crl.A.514/2020 7
5. On the other hand, the learned Senior Public Prosecutor pointed out that even if any links are missing in the evidence of prosecution, it is open to this Court under Section 391 Cr.P.C. to take further evidence or to direct the trial court or another subordinate court take additional evidence, for the proper proof of the document.
6. Before considering the rival contentions, the evidence can be narrated in brief. PW1 is the victim girl. She is a native of Kanyakumari and has studied upto 8th standard. At the time of her examination on 12.06.2018 she was 16 years old. She denied having given a statement to the police. According to her, the accused is the son of the uncle of her mother. To a pointed query as to whether he had sexually abused her, she gave answer in the negative. She denied the prosecution allegations so that she was declared hostile to the prosecution and was cross-examined by the Public Prosecutor. According to her, she is not interested in pursuing the matter, that she has no complaint against the accused.
7. PW2 Avudayammal is the mother of PW1. She also turned Crl.A.514/2020 8 hostile to the prosecution. She admitted that PW1 is her daughter and pleaded ignorant about the prosecution case. She also completely denied the prosecution version. She denied that the accused had sexually assaulted PW1. According to her, she does not know the accused. PW3 Chandran, the father of the victim, also denied having knowledge about the incident and his previous statement to the police. He also does not know the accused. Both PWs 2 and 3 were also declared hostile to the prosecution and no question was put by the defence. PW4, Dr.Bini S. Raj was working as a Junior Consultant in Obstetrics & Gynaecology in the Government W&C Hospital, Alappuzha on 11.08.2017. That day at 12.50 p.m. she had examined PW1 and issued the Ext.P1 medical certificate. According to her, the child was pregnant by about 16 weeks. The alleged incident was that about five months before she was sexually assaulted and raped by one Ganesh in a pig farm at Nagarkovil; at that time her parents were not there, she was afraid of revealing the incident to her mother. Her pregnancy was revealed about 1½ months prior to the date of revealing Crl.A.514/2020 9 the matter to the police at Kurisumoodu Hospital. On clinical examination, uterus was 16-20 weeks foetal development and she was advised to undergo ultra sonogram. The DNA profile in respect of PW1 and the accused is marked as Ext.P4.
8. PW5, Dr.Zachariah Thomas is the Professor in Forensic Medicine as on 30.08.2017. That day, at 9.50 a.m., he examined PW1 for estimation of her age, based on the physical, dental and radiological findings. He concluded that she is above 15 years and below 16 years old and issued a certificate, which is marked as Ext.P2. PW6, Sreedevi is the then Sub Inspector of Police in Vanitha police station at Alappuzha and she had recorded Ext.P3 statement of the victim. According to her, the person who had assaulted the PW1 is one Ganesh from U.P., at Thamarakkulam pig farm in Kanyakumari. The statement was given on 17.08.2017, though the incident had happened in March 2017. The statement was given when she was found pregnant on examination in Kidangara hospital.
9. PW7 is the then Sub Inspector of of Police, Ramankari Crl.A.514/2020 10 police station, who registered the crime on the basis of Ext.P3 First Information Statement.
10. PW8 Abin Thampi is the Consultant Radiologist at Midas Scans and Graphs, Alappuzha, who had conducted sonogram and issued the Ext.P5 report showing that the patient carried single live intrauterine gestation of 13 weeks and 4 days. She had appeared before him on being referred by PW4.
11. PW9 Dr.Rejitha was Medical Officer in P.P. Unit, Government T.D. Medical College, Alappuzha on 22.08.2017. On that day, PW1 was taken there with the alleged history of rape; she was carrying, having 14 weeks of gestation; on taking scan, her pregnancy was confirmed. On her examination, she understood that the said pregnancy was a threat to her life due to tender age and health condition. Therefore, she conducted MTP. According to her, MTP was conducted after obtaining opinion of the Head of the Department of Gynaecology. PW10 is Dr.Snehal Asok, who examined the accused on 25.09.2017 and issued the Ext.P6 potency certificate. On his Crl.A.514/2020 11 examination, there was nothing to suggest that the accused is incapable of performing sexual acts. PW11 is Dr.Bincy Babu, who was Medical Officer in the Department of Forensic Medicine, Government T.D. Medical College, Alappuzha. On 25.09.2017, she collected blood samples of the accused for DNA analysis.
12. PW12 and PW13 are Village Officer and Secretary of Veliyanad village, respectively. PW14 Sindhu is the WCPO of Ramankari police station, who took blood sample of PW1 to the Forensic Science Laboratory for examination. PW15 was CPO in Ramankari police station, who took the accused to T.D. Medical College, Alappuzha for collecting his blood sample. PW16, Sophia is the then WCPO in Ramankari police station who took PW1 to the Medical College Hospital for examination. According to her, the First Information Statement was recorded in her presence.
13. PW17 Haridasan is the Circle Inspector, Pulinkunnu, who conducted the investigation and laid the charge sheet; he examined the witnesses, filed report incorporating Section 75 of the Juvenile Justice Crl.A.514/2020 12 (Care and Protection of Children) Act, prepared the scene mahazar, produced abortion specimen and maternal blood in court, in terms of the property list and sent the items with forwarding notes, arrested the accused on 16.09.2017 and sent to judicial custody, completed the investigation and laid the charge sheet. According to him, the accused was arrested on the basis of the statement given by PW1. Going by Ext.P3, the place of occurrence is Thamarakkulam, which is not a place falling within his jurisdiction. He does not know under which police station limits this place falls. The accused was arrested from Tamilnadu Sucheendram police station limits. He did not question the parents of the accused. On enquiry, it was understood that the accused did not have a twin brother. He also understood that there is no person by name Ganesh. He did not go to the pig farm where the incident had allegedly happened in 2016.
14. After examining PW1, he realised that the statement given by PW1 on 13.08.2017 is the correct statement. At that time, she had disowned Ext.P3 statement which was not correct, according to him. Crl.A.514/2020 13 PW1 did not tell that the said Ganesh had not raped her. He denied having questioned the parents of the accused. He does not know whether Ganesh is the identical twin brother of the accused. He denied that he had impleaded the accused under the influence of the said Ganesh.
15. As pointed out by the learned counsel for the appellant, the conviction hinges on the Ext.P4 DNA profile result, which states as follows:-
"(1) In the absence of identical twins, the alleged father Mariyappan @ Mari to whom the blood sample in item No.4 belongs is the biological father of the foetus in item No.1.
(2) In the absence of identical twins, though admitted mother xxxx (PW1) to whom the blood sample in item No.2 belongs is the biological mother of the foetus in item No.1."
16. As rightly pointed out by the learned counsel for the appellant, the material witnesses, the victim girl who was allegedly raped and impregnated by the accused, and her parents, have turned hostile to the prosecution. They have not stated anything implicating Crl.A.514/2020 14 the appellant. The statements of these three vital witnesses are rather cryptic. Even though the material documents suggest that the statement of the victim was recorded under Section 164 of the Cr.P.C. by the Magistrate, nothing was asked to her calling her attention to the previous statement. All the material witnesses have turned hostile to the prosecution and that the conviction hinges on the Ext.P4 DNA profile result. Now the moot question is as to how far Ext.P4 could be based upon to proceed against the appellant.
17. It is true from the medical records that a minor girl between the age of 15 and 16 had become pregnant and her pregnancy had been terminated considering the hazards involved. Therefore, it is certainly a case of statutory rape, notwithstanding the stand taken by the victim or her parents. In that way, the oral testimony of PWs 1 to 3 do not have much importance.
18. Now the question is whether Ext.P4 DNA test profile can be made the solid basis for convicting the appellant. The learned Special Judge has proceeded on the premise that under Section 293 of Crl.A.514/2020 15 the Cr.P.C. the Ext.P4 is admissible in evidence. But, as rightly pointed out by the learned counsel for the appellant, the learned Special Judge has proceeded on the wrong premise that Ext.P4 is a substantive piece of evidence and is admissible under Section 293 of the Cr.P.C. Ext.P4 was marked through PW4 Dr.Bini S.Raj, who had examined the girl on 11.08.2017 and confirmed her pregnancy. Section 293 of the Cr.P.C. reads thus:-
"293. Reports of certain Government scientific experts:-
(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report. (3) Where any such expert is summoned by a Court, and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This Section applies to the following Government Crl.A.514/2020 16 scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical
Examiner to Government;
(b) the Chief Controller of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, [Deputy Director or Assistant Director] of
a Central Forensic Science Laboratory or a State
Forensic Science Laboratory;
(f) the Serologist to the Government.
(g) any other Government scientific expert specified by
notification, by the Central Government for this purpose."
19. It has come out that Smt.Priya Mary Chacko, Scientific Officer (Biology) of the State Forensic Science Laboratory, Thiruvananthapuram is the author of the Ext.P4 report. Even though Ext.P4 points the finger of guilt against the appellant, the question is whether implicit reliance can be placed on the document with the aid of Section 293 of the Cr.P.C. Section 293(4) of the Cr.P.C. enumerates six categories of Government scientific experts, whose reports could be acted upon and used as evidence even without examining them. A Crl.A.514/2020 17 Scientific Officer of the Forensic Science Laboratory is not one among them. It is also certain that, that officer does not fall within the category of clause (g) of sub-clause (4) of Section 293. That means without proving the contents of the document, the Special Judge was not justified in placing implicit reliance on the finding.
20. I have come across at least one decision of the Hon'ble Supreme Court, State of Himachal Pradesh v. Mast Ram [AIR 2004 SC 5056], where the Hon'ble Supreme Court has accepted the report of ballistic expert submitted under the signature of the Junior Scientific Officer, even though such a post is not enumerated under sub-section (4) of Section 293 Cr.P.C. But that has turned up on its own facts and does not lay the general proposition that Section 293 Cr.P.C. has no application in all cases.
21. Moreover, there is laches on the part of the prosecuting agency as well as the Special Prosecutor in properly conducting the case. As pointed out by the learned counsel, even though maternal blood and the foetus were sent for examination, no witness has stated Crl.A.514/2020 18 that such items were collected; there is no material that the items were seized by the police and produced before the court through proper channel to be sent for examination. Absence of such link evidence also has been rightly highlighted.
22. Again, though material witnesses including the victim, have turned hostile to the prosecution, they were examined in a very light hearted manner. They were not cross-examined with respect to the previous statements produced by the police. Even the statement of the girl recorded under Section 164 of the Cr.P.C. has not come to light.
23. When it is said that Ext.P4 cannot be placed implicit reliance, that would cut the very root of the prosecution case. By placing reliance on this document, even though all the material witnesses had turned hostile to the prosecution, the learned Special Judge proceeded and convicted the appellant. In short, there is no legal evidence proved against the appellant. Such a slipshod course adopted by the court is liable to be interfered with.
24. The findings in Ext.P4 are made subject to the ladder that it Crl.A.514/2020 19 would be applicable only in the absence of identical twins. As noticed earlier, the crime was registered on the basis of Ext.P3 First Information Statement where the victim has named one Ganesh as the person responsible for her pregnancy. Some attempts were also made by the defence to say that the accused has an identical twin by name Ganesh, that he was responsible for the misery. Even though the defence did not take forward the contention, the burden is entirely on the prosecution to prove the case to the hilt by making out that the appellant does not have an identical twin. This is very important in the light of the opinion formed by the Scientific Officer, despite the fact that the Ext.P4 cannot be acted upon as matters stand now. But the testimony of PW17 Circle Inspector clearly indicates that he had not made any enquiry into that direction.
25. Turning to the argument of the learned Special Prosecutor that this Court should resort to Section 391 of the Cr.P.C., it must be said that it is not a remedy. It is the settled proposition of law that additional evidence can be taken at the appellate stage only in Crl.A.514/2020 20 exceptional circumstances, to remove the irregularity, if circumstances so warranted in public interest. Generally, such power is exercised to have formal proof of documents, etc., just to meet the ends of justice. However, provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up the lacunae in the prosecution case. [See: Ashok Tshering Bhutia v. State of Sikkim (2011 Crl.LJ 1770)].
26. On an overall assessment of the facts and evidence, it can be stated that legal evidence is lacking to proceed against the appellant. Even if this Court is invoking the jurisdiction under Section 391 of the Cr.P.C. and causes the examination of the Scientific Officer, that is not likely to fill up the lacunae crept in the prosecution case.
In the result, the conviction imposed on the appellant is interfered with and set aside. The appellant shall be released forthwith, if his detention is not necessary for any other case.
Appeal is allowed.
Sd/-
K. HARIPAL JUDGE okb/24.03.21 //True copy// P.S. to Judge