Kerala High Court
Chackochan vs State Of Kerala on 24 February, 2025
Criminal Appeal No.423 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
CRL.A NO. 423 OF 2014
AGAINST THE JUDGMENT DATED 30.04.2014 IN SC NO.602 OF
2011 ON THE FILE OF THE COURT OF SESSION, ERNAKULAM.
APPELLANT/ACCUSED:
CHAKOCHAN,
AGED 53 YEARS,
S/O.DEVASSY,
MANAVALAN VEETTIL, KODUSSERY KARAYIL,
PARAKADAVU VILLAGE, ALUVA TALUK, ERNAKULAM.
BY ADVS.
SRI.GEO PAUL
SRI.S.ASHOK KUMAR.
SRI.S.ABHILASH VISHNU
SRI.C.R.PRAMOD
SRI.R.VINU RAJ
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, THROUGH CIRCLE INSPECTOR,
ANGAMALY POLICE, ERNAKULAM DISTRICT. PIN-682 031.
*ADDL R2 HARI,
AGED 54 YEARS,
S/O. AYYAPPAN, VELIYATHUPARAMBIL, KODUSSERY KARA,
PARAKKADAVU VILLAGE,
ALUVA, ERNAKULAM DISTRICT
*(IMPLEADED AS PER ORDER DATED 14.01.2025 IN
CRL.MA.1/2018 IN CRL.A.423/2014)
Criminal Appeal No.423 of 2014
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2025:KER:15443
BY ADV SANDHYA RAJU
SRI.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11.02.2025, THE COURT ON 24.02.2025 DELIVERED THE FOLLOWING:
Criminal Appeal No.423 of 2014
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2025:KER:15443
C.S.SUDHA, J.
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Criminal Appeal No.423 of 2014
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Dated this the 24th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant, the sole accused in S.C.No.602 of 2011 on the file of the Court of Session, Ernakulam, challenges the conviction entered and sentence passed against him for the offence punishable under Section 376 IPC.
2. The prosecution case as revealed from the final report/charge sheet filed before the trial court on 31/07/2011 is as follows:- The accused during the past one year has been molesting PW1, his neighbour a 16 year old girl, who is intellectually disabled (മ നസ കമ യ പ പ ക റവ ള) several times inside her house bearing no.V/104, Parakkadavu Panchayath, Kodussery, Parakkadavu Village. On 30/12/2010 at 10:00 a.m. he raped her inside the Criminal Appeal No.423 of 2014 4 2025:KER:15443 southern room of her house. He raped her several times thereafter also. Hence, as per the final report, the accused is alleged to have committed the offence punishable under Section 376 IPC.
3. Crime no.735/2011, that is, Ext.P11 FIR was registered by PW14, Sub Inspector, Angamaly Police Station based on Ext.P1 FIS given by PW4, the paternal uncle of PW1. The investigation was conducted by PW15, the Sub Inspector, Angamaly Police Station, who on completion of investigation submitted the final report before the jurisdictional magistrate alleging the commission of the offence punishable under the aforementioned Section by the accused.
4. On appearance of the accused, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Ernakulam. The case was taken on file as S.C.No.602/2011 and thereafter made over to the Additional District and Sessions Judge, Ernakulam, the designated court for Trial of Cases Relating to Atrocities and Sexual Violence Against Criminal Appeal No.423 of 2014 5 2025:KER:15443 Women and Children, for trial and disposal. On 06/02/2013, the trial court framed a charge for the offence punishable under Section 376 IPC, which was read over and explained to the accused to which he pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW17 were examined and Exts.P1 to P19 and M.O.1 series were marked on the side of the prosecution. PW1 and PW3 were thereafter recalled on the request of the prosecution and Exts.P19 and P18 marked. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. He also gave a statement in writing explaining his stand. According to him he has two grown-up daughters. He is not involved in any crime till date. PW1 his neighbour has mental problems and infirmities from the time she was studying in high school. She is in the habit of imagining things. She is quite fearful in nature. She entertains the feeling that the soul Criminal Appeal No.423 of 2014 6 2025:KER:15443 of dead people possesses her. Several poojas were conducted in her house for her treatment. The story that the accused had sexually abused her is only a figment of her imagination. PW1 is like a daughter to him. He is on inimical terms with PW5 and the other relatives of PW1. Therefore, after the demise of PW1's father, the said relatives have fabricated a case using PW1 and PW3.
6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. From the impugned judgment it is seen that though the accused initially stated that he wanted to examine witnesses thereafter, no witnesses were produced. It was at this stage the trial court summoned and examined the Registrar of Births and Deaths, Thrissur Corporation as CW1 to prove Ext.C1, the extract of the birth register. Thereafter, the evidence was closed and both parties were heard.
7. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence Criminal Appeal No.423 of 2014 7 2025:KER:15443 punishable under Section 376(1) IPC and hence sentenced him under Section 235(2) Cr.P.C. to rigorous imprisonment for a period of ten years and to a fine of ₹25,000/- and in default to rigorous imprisonment for one year. Set off under Section 428 Cr.P.C. has also been allowed. Out of the fine amount, if realized, ₹20,000/- has been directed to be paid as compensation to PW1 under Section 357(1)(b) Cr.P.C. Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in this appeal is whether the conviction entered, and sentence passed against the accused/appellant by the trial court are sustainable or not.
9. Heard both sides.
10. Before I go into the arguments advanced, I shall briefly refer to the evidence on record relied on by the prosecution to prove the case. Ext.P1 FIS was given by PW4, the paternal uncle of PW1 to PW14, the Sub Inspector, Angamaly Police Station. Ext.P1 was recorded on 16/05/2011 at 10:30 a.m. at which time PW1 was also present in the police station. In Ext.P1 FIS PW4 Criminal Appeal No.423 of 2014 8 2025:KER:15443 states that on several days in the past two weeks, the accused had tried to rape PW1. Two weeks back, he noticed an abnormal/unusual change in the behaviour of PW1. He enquired about the matter with PW1, who burst into uncontrollable tears. PW1 also showed signs of mental disorder ( മ നസ ക വ പഭ ന ). So, he took PW1 along with PW3 her mother, to Ernakulam for counselling. During the course of counselling, it was revealed that the accused had attempted to sexually abuse PW1 several times. PW1 is still not normal. She is undergoing treatment. Two weeks back PW1 was quite active. For the last two weeks she has been showing signs of mental disorder (മ നസ ക വ പഭ ന ). PW3 goes out for work at which time PW1 would be alone at home. Taking advantage of the situation, the accused tried to rape her. The incident happened inside the house of PW1. PW4 in Ext.P1 also stated that the incident of sexual abuse started two weeks back.
10.1. PW4 in the box stands by his version in Ext.P1 FIS. He deposed that PW1 was mentally upset and hence the reason for the delay in giving the complaint to the police. They were all Criminal Appeal No.423 of 2014 9 2025:KER:15443 worried about her future, which also caused the delay. In the cross examination he deposed that before he gave Ext.P1, he never knew that the accused had raped PW1. He realised the same after PW1 was medically examined. PW1 was treated at the Psychiatric department of the Medical College, Thrissur. She regained normalcy only after treatment. PW4 was asked whether PW1 had such mental issues earlier, to which he answered in the negative.
[ധന ക മ ൻ മ നസ ക ന ല ത റ യ സ ഭവ ഉണ യ ട ണണ ? (Q). മ ൻ ഈ ന ലയക ഉണ യ ട ല (A)].
10.2. PW1, the victim, deposed that the accused, her neighbour used to always trouble her. On 30/12/2010 while she was at home, somebody rang the calling bell. When she opened the door, it was the accused who was standing outside. She closed the door. The accused forcibly opened the door and came inside. He grasped her breast, closed her mouth, bit her lips and kissed her. The accused forcibly took her to the room on the south, undressed her and had intercourse with her. She felt pain in her breast and genital area. She further deposed that the accused had committed Criminal Appeal No.423 of 2014 10 2025:KER:15443 penetrative sexual assault. Thereafter he left her house. The accused had done the aforesaid acts several times from the time she was in the Vth Std. After 30/12/2010, the accused again repeated the act about two to three times. After the last incident, she revealed the same to her mother. She did not disclose the abuse to her mother earlier due to fear. After the last incident of rape, the next day her mother finding her crying, enquired the matter. It was then that she had disclosed the incident to her mother. She was taken for counselling to PW2. PW1 identified PW2 who was present in court during her examination. She gave a statement to the police. She was taken to the hospital at Thrissur and thereafter to a hospital at Ernakulam. She became mentally ill because of the sexual abuse of the accused. She is presently under treatment. PW1 in the cross examination deposed that before giving statement to the police, she was not under treatment for mental illness. According to her, she had mental issues two years after the demise of her father. Before she went to the police station, she had a similar problem earlier, at which time she used to get the feeling that she was going to die. Criminal Appeal No.423 of 2014 11 2025:KER:15443 She used to feel that strangers were coming to her home. When she had mental issues she used to feel that somebody was following her even when she saw a shadow. She also used to feel that the villain characters in the movies and serials, which she watched on TV, were coming near her and troubling her while she was alone during nights. When it was suggested to her that it was her imagination that the accused had abused her, PW1 answered in the negative and started crying.
10.3. PW2, former Head, Department of Science, Chinmaya Vidyalaya, Vaduthala, B.Sc Honors and M.Sc. M.Ed., deposed that he has 40 years of teaching experience. As part of teaching, he also conducts counselling. It was on the recommendation of one of his friends he had met PW1. As a teacher he had counselled PW1 also. PW1 after the death of her father harboured a feeling that she would die. She had difficulty in studying and hence the reason why she was brought to him for counselling, which lasted for three hours. PW1 took considerable time to open up and start talking. During counselling PW1 Criminal Appeal No.423 of 2014 12 2025:KER:15443 repeatedly asked him whether she would die. To a question by the Court as to whether PW1 had revealed to him about any sexual abuse, PW2 answered in the negative. PW1 was accompanied by her sister who was pursuing her nursing course. Her sister told him that somebody had groped the victim. He immediately stopped the counselling and advised her sister to take PW1 to a doctor as he was not competent to do any further counselling. (ക ട യ ത# ക$ത# അ ത& Nursing ന ഠ ക ന ണ)ച ഉണ യ ര ന . കയറ #ച എതന തക റഞണ. ൾ ഞ നവ ത# ന ർത . ണ)ച ണയ # ഇന എന ക ത)യ ൻ റ നസ ഗ അല , എതന തകയ ണ ണവണ 9 റ എന ണ7 കത കണ ണ) ദ ക ൻ റഞ . ) 10.4. PW3, the mother of the victim, deposed that on seeing her daughter crying, she enquired the matter and then her daughter told her that the accused had abused her. PW1 was then taken for counselling.
10.5. PW9, Headmistress, Government Higher Secondary School, Puliyinam deposed that she had issued Ext.P6 certificate relating to the date of birth of the victim and as per the certificate the date of birth is 25/02/1995.
Criminal Appeal No.423 of 2014 13 2025:KER:15443 10.6. PW10, Additional Professor, Department of Obstetrics and Gynecology, Government Medical College, Thrissur, deposed that on 23/05/2011 at 03:15 p.m. she had examined PW1, 16 years, as per the request of the police. She was brought to the hospital by her mother and a police constable with a history of sexual intercourse by Chacko, her neighbour (the accused) several times for the past one year while she was alone at home. She disclosed the matter to her mother on 07/05/2011. The victim showed some abnormal behaviour, and so psychiatric consultation was done. The girl was on drugs. Upon examination she found the victim to be drowsy. No external injuries were seen. Hymen was found torn. No fresh bleeding was found. The posterior fourchette was found congested and inflamed. Vagina admitted one finger and it was loose; there was a discharge and as the patient was drowsy, she sent her to the psychiatrist for evaluation. According to PW10, the examination of the victim was consistent with the history of sexual intercourse.
10.7. PW12, Assistant Professor, Psychiatry, Criminal Appeal No.423 of 2014 14 2025:KER:15443 Government Medical College, Thrissur deposed that as directed by the Court he has produced the case records of the patient, that is PW1, who was brought to the hospital on 07/06/2011 by her mother and paternal uncle with a history of behaviour problems for the past one month. The symptoms were decreased sleep and appetite. There was decreased talk, and the victim was crying and expressing fear and frequently asking whether she would die. She was exhibiting clinging behaviour towards her mother. There was a history of sexual abuse by her neighbour. There was no history of psychiatric illness. She had a disability certificate from the District Medical Board, Ernakulam dated 13/08/2010 stating that she has mental retardation with 50% disability. On admission her diagnosis was severe depressive episode, and she was treated with ante depressants. During her stay in the hospital, she showed irritable behaviour and therefore, the diagnosis was changed to mixed effective episodes. She was discharged on 26/03/2011. The certified copy of the case records of PW1 was marked as Ext.P10. In the cross-examination, PW12 deposed that PW1 was not on Criminal Appeal No.423 of 2014 15 2025:KER:15443 psychiatric drugs when she came to him for the first time. No treatment records were brought when PW1 came to him. There was only the report regarding the gynecological examination. She was admitted in the hospital from 07/06/2011 to 23/06/2011. In Ext.P10 it has been noted that there was no history of psychiatric illness or treatment. The patient thereafter was on regular follow-up and her treatment continues. PW12 answered in the affirmative when he was asked whether it was possible to have ejaculation or orgasm in a person who is dreaming. To a question that in auditory or visual hallucination, strange thoughts of feelings are characteristics of degeneration of thoughts, he answered that it is only a thought and perception abnormality. To a question whether there is a class of mentally ill people who have false perception and inaccuracies that affect senses and cause them to hear, see, taste, touch or smell what others do not feel, answered in the affirmative. To the question of whether delusions are false beliefs or misinterpretation of events and their significance, PW12 answered that it is not so, and that delusions are false, firm and fixed unshakable beliefs which cannot Criminal Appeal No.423 of 2014 16 2025:KER:15443 be explained by the social, cultural and educational background of an individual. A person having a delusion will have a feeling that it is real and would not correct it. To a question whether a false feeling that a person has been possessed; a false feeling that a person is going to die; a false feeling that some persons are coming to his or her house; a false feeling of a shadow being a person stalling or following ; a false feeling that villains in movies or T.V. serials are approaching and disturbing that person are presumably the outcome of a defective thought process, answered that there are thousands of such symptoms. When the question was repeated PW12 answered that it may be so. In the re-examination, PW12 deposed that as per Ext.P10 he had treated the patient only for severe depression. On the date of admission, the diagnosis was that she was under severe depression and later the diagnosis was changed to mixed effective episode, which is mixed mood like depressive and irritable symptoms. In the further cross-examination PW12 was asked whether it is difficult to identify the symptoms of psychiatric illness in an intellectually disabled person unless Criminal Appeal No.423 of 2014 17 2025:KER:15443 extreme care and attention is shown, answered that a physician may find it difficult to identify change in behaviour as typical symptoms are common in intellectual disability cases, but it is very easy for parents to detect/notice change in behaviour as they have known the patient for long. To a further question whether the symptoms of mental illness in an intellectually disabled person are often misunderstood by layman as symptoms of intellectual disability, answered that it may be so.
10.8. PW14 deposed that when Ext.P1 FIS was given, PW4 never stated to him that PW1 had been raped.
10.9. PW17, Consultant Psychiatrist, General Hospital, Ernakulam deposed that he was a member of the Medical Board, which issued Ext.P18 certificate, which bears his signature also. As per Ext.P18 the patient (PW1) had 50% mental retardation which comes under the moderate category. She could distinguish people as well as communicate about what had happened to her. In the cross- examination PW17 deposed that Ext.P18 is a conclusive test report containing the conclusions and findings and that it does not mention Criminal Appeal No.423 of 2014 18 2025:KER:15443 about the test(s) conducted or the medial records that were perused. PW17 denied the suggestion that the observations in Ext.P18 are incorrect and that it was issued only for the purpose of obtaining benefits from the Government.
10.10. CW1, Registrar, Births and Deaths, Thrissur Corporation produced the birth register of the year 1994. Page no.24 of the Register refers to the birth of a girl child on 11/11/1994. The names and addresses given in Ext.C1 correspond to the name and address of the parents of PW1. The child was born in a private hospital. The birth was registered on 18/11/1994. The attested copy of the relevant page of the register has been marked as Ext.C1.
11. It was quite persuasively argued by the learned counsel for the accused/appellant that PW1, the alleged victim, is an incompetent witness. The trial court before embarking on the examination of PW1, never tested her capacity to depose or ability to give rational answers. According to the learned counsel, though no particular procedure is prescribed in the Criminal Procedure Criminal Appeal No.423 of 2014 19 2025:KER:15443 Code to test the competence of a witness unlike in the case of an accused who is unsound, the trial courts must adopt some procedure like the one contemplated under Section 328 Cr.P.C., if not, serious prejudice would be caused to the accused. In the case on hand, the trial court gave the benefit of the intellectual disability of PW1 to get over the defects in the prosecution case but does not give the same benefit to the accused who has been falsely implicated in this case. The incompetence of PW1 to depose ought to have gone in favour of the accused and ended in an acquittal of the accused. However, the trial court on a total misappreciation of the law and evidence has grossly erred and arrived at the guilt of the accused based on the faulty or highly unreliable testimony of PW1, goes the argument.
11.1. Per contra, it was pointed out by the learned Public Prosecutor that Section 328 Cr.P.C. is not applicable to the facts of the case and that it is applicable only in the case of accused persons of unsound mind. It was also pointed out that the competence of a witness can be assessed by the trial court from the Criminal Appeal No.423 of 2014 20 2025:KER:15443 answers given by the witness to the questions put to her in the chief and cross examination.
12. PW1 even as per the final report/charge sheet is stated to be intellectually disabled. What is the extent of her disability has been brought out in Ext.P18 and in the testimony of PW17. As per Ext.P18, a disability certificate for physically handicapped person dated 13/08/2010 issued by the Board members consisting of an Orthopedist, a Psychiatrist, a ENT Surgeon, a Physiatrist and an Ophthalmologist, PW1 then aged 15 years was assessed to have 50% disability coming under the moderate category. Ext.P18 has been proved through PW17, whose testimony I have already referred to.
12.1. PW9, Headmistress, Government Higher Secondary School, Puliyinam deposed that PW1 was a student of integrated education for disabled. PW1 the victim girl when examined deposed that she had passed 10 th standard with 60% marks. Now the moot question is - was PW1 a competent witness? Section 118 of the Evidence Act says that all persons shall be Criminal Appeal No.423 of 2014 21 2025:KER:15443 competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation to the Section says that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. In the case of a child witness, normally the trial courts conduct voir dire to ascertain the competence of the witness. It is true that no preliminary questions were asked by the trial Court to test the competency of PW1. The evidence on record shows that PW1 was above 16 years when she was examined before the court. Sections 328 to 339 in Chapter XXV Cr.P.C. deal with the procedure to be followed in case an accused is found to be of unsound mind and consequently incapable of making his defence. The court in such cases shall cause the accused to be examined by a civil surgeon or such other medical officer as the State Government may direct and on examination, if the accused is found to be of Criminal Appeal No.423 of 2014 22 2025:KER:15443 unsound mind and incapable of defending himself, shall postpone the trial of the case till he attains normalcy. The court has the power to even discharge the accused.
13. In Ramesh P. v. State rep. by Inspector of Police : 2019 KHC 6676 : AIR 2019 SC 3559, the Apex Court referring to Ratan Sinh Dalsukhbhai Nayak v. State of Gujarat, 2003 KHC 1445 : (2004) 1 SCC 64, subsequently relied upon in Nivrutti Pandurang Kokate v State of Maharashtra, 2008 KHC 5208 : (2008)12 SCC 565 also held that the decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a Criminal Appeal No.423 of 2014 23 2025:KER:15443 world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. To determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness, and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her / him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she / he can (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of a tender age can be allowed to testify if she / he has the intellectual capacity to Criminal Appeal No.423 of 2014 24 2025:KER:15443 understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her / him and gives rational answers to those questions, it can be taken that she / he is a competent witness to be examined. (See also Dalsukhbhai Nayak v. State of Gujarat, 2003 KHC 1445: (2004)1 SCC 64) 13.1. Here it would be apposite to refer to the dictum of a learned Single Judge of the High Court of Orissa in Damodar Das @ Bhoi v. State of Orissa, 2019 KHC 2165, which case also involved commission of offences under Sections 366, 376(2)(f) and 506 IPC. It was contended that since the victim was a child witness, the trial Judge ought to have first ascertained the competency of the victim to depose by putting some questions in order to ascertain whether the witness was intelligent enough to say what has passed with her and whether she understood the duty of speaking truth or not and in absence of preliminary examination of the victim, her Criminal Appeal No.423 of 2014 25 2025:KER:15443 credibility was seriously affected and her evidence should be rejected on that score alone. It was held that there can be no dispute that in view of S.118 of the Evidence Act, all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions due to tender years etc. No particular age has been prescribed as a demarcating line for treating a witness incompetent to testify by reason of his / her tender age. Competency to testify depends on the ability to understand questions and to give rational answers. It depends on the capacity and intelligence of the child witness, his appreciation of the difference between truth and falsehood as well as his duty to speak truth. When a witness is called upon to give evidence and there is reason to suspect that he / she may not be capable of giving rational answers to the questions put to him / her, it is but necessary for the Court to put some questions to such witness with a view to ascertain whether he / she is a competent witness to give evidence or not. There is no dispute that since a child witness is prone to tutoring, his / her evidence Criminal Appeal No.423 of 2014 26 2025:KER:15443 should be scanned carefully, and preliminary questions are required to be put to such witness to ascertain as to whether he / she has intellectual capacity to understand the questions and give rational answers thereto. The preliminary examination of a child witness is nothing but a rule of caution. The trial Court is required to record its query to a child witness in the form of questions and answers so that the Appellate Court will be able to see whether child witness understands the duty of speaking truth. Even though it is desirable to make such a preliminary examination, it is not always imperative. There is no rule that in case of every child witness, the trial Court should conduct a preliminary examination. It is only a rule of prudence and not a legal obligation. When questions are raised regarding the intellectual capacity of the child witness, the Court can peruse the evidence of the victim in its entirety to find out as to whether he / she was capable enough to give rational answers to the questions put to him / her after understanding the same. Absence of preliminary examination of the child witness would not render his / her evidence inadmissible. The victim in the case was aged about 14 Criminal Appeal No.423 of 2014 27 2025:KER:15443 years at the time of her deposition. Even though the trial Court did not put any formal questions to the victim to testify her competency, in the light of the nature and tenor of the evidence of the victim, the manner in which she deposed about the occurrence in examination - in - chief and also faced and stood the test of searching cross - examination by the defence counsel, it was held that the witness was competent and so the argument that the evidence of the victim should be rejected in toto as the trial Court had not made any preliminary examination of the victim was rejected. But a note of caution was sounded, that is, the evidence of such a victim would have to be examined carefully and with greater circumspection by the court to convince itself regarding the quality and reliability of the child's version. Though the aforesaid decisions refer to child witnesses, in my opinion the same principle can be applied to the case on hand also.
14. It was pointed out that after the FIS was given, PW1 was taken to the Government hospital, Aluva. But she refused to co-operate and hence her examination could not be conducted. Criminal Appeal No.423 of 2014 28 2025:KER:15443 She had to be then taken to the Medical College, Thrissur for her medical examination. Likewise, initially PW1 refused to speak/open up when she was summoned before the Court for her examination. The case had to be adjourned as PW1 was not co-operating. The court was then informed that PW1 would open up only in the presence of PW2 and so the Court summoned PW2, not a charge witness, causing great prejudice to the accused. The learned defence counsel took strong exception to the trial court summoning and examining PW2 to prove the prosecution case. I think the challenge mounted on the examination of PW2 is not justified. It is true that PW2 was not a charge witness. But in cases of this nature, the trial court has to create a conducive atmosphere for witnesses of sexual abuse to speak up. When it was found that PW1 would be comfortable and feel free to depose only in the presence of PW2, the trial court rightly summoned him. The defence was given ample opportunity to cross-examine PW2. It is true that if PW2 had been made a charge witness there would have been his 161 statement(s) which would have enabled the accused to contradict him, if found Criminal Appeal No.423 of 2014 29 2025:KER:15443 necessary. However, it is to be noticed that PW2 is not an eyewitness, and his testimony makes it quite clear that he does not have any interest, personal or otherwise in the matter. PW2 deposed that PW1 had been referred to him by one of his friends and that he had counselled PW1 when he was told that she had difficulty studying and concentrating. However, the moment PW2 felt that it was a case of sexual abuse, he stopped counselling her and advised the sister of PW1, who was accompanying her to take the victim to a person qualified to conduct further counselling. Therefore, I do not find anything amiss in the trial court summoning PW2 and examining him or examining PW1 in the presence of PW2.
15. It is true that no preliminary questions are seen put to PW1 by the trial court to test her competency. But as noticed earlier this preliminary examination of the witness is nothing but a rule of caution. Even though it is desirable to make such a preliminary examination, it is not always imperative. There is no rule that in case of every such witness, the trial Court should conduct a preliminary examination. Absence of preliminary Criminal Appeal No.423 of 2014 30 2025:KER:15443 examination of the witness would not render her evidence inadmissible. It is only a rule of prudence and not a legal obligation. As questions are raised regarding the intellectual capacity of PW1, I will closely examine the testimony of PW1 in its entirety to find out whether she was capable enough to give rational answers to the questions put to her after understanding the same.
16. It is true that PW1 candidly admitted to hallucinating, having delusions and entertaining fear that the villain characters in the movies and serials she had watched on T.V. were troubling her during night. The testimony of PW12, to which I have already referred to, will show that PW1 did not have any serious mental issues. As pointed out by the trial court, it is pertinent to note that the accused/appellant, her neighbour was initially on quite friendly terms with her. The relationship between both the families was quite cordial. No materials have come on record to show that PW1 was afraid or terrified of the accused. Several questions are seen put to PW12 regarding hallucinations, delusions etc. But they are all general questions. It is true that PW1 was reluctant to submit Criminal Appeal No.423 of 2014 31 2025:KER:15443 herself for medical examination when she was first taken to a hospital. Thereafter, she had to be taken to another hospital and then she consented for the examination. This conduct of PW1 does not in any way show that she was incompetent to depose or that her intellectual incapacity was such that making her an incompetent witness.
17. The learned defence counsel also took strong exception to the summoning and examination of PW12 who was also not a charge witness in the final report. According to the learned counsel, the trial court practically stepped into the shoes of the prosecutor and was summoning witnesses and documents to fill up the loopholes and lacuna in the prosecution case. I think this argument is also not justified because Courts are not expected to remain as mute spectators when the prosecutor does not properly/adequately take steps to prove the prosecution case. In Ram Chander v. State of Haryana, 1981 (3) SCC 191 it has been held that the adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the Criminal Appeal No.423 of 2014 32 2025:KER:15443 role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive element entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.
17.1. In J. Jayalalithaa v. State of Karnataka, 2013 KHC 4787: 2014 (2) SCC 401, the Apex Court dealing with the concept of fair trial held that denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only Criminal Appeal No.423 of 2014 33 2025:KER:15443 be done but should seem to have been done.
17.2. In Bablu Kumar v. State of 2015 KHC 3293:
2015 (8) SCC 787, it has been held that if the Court is of the opinion that the material witnesses have not been examined, it should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all the material witnesses but that does not necessarily mean that the prosecution can choose not to examine any witness and convey to the Court that it does not intend to cite the witnesses. The Public Prosecutor who conducts the trial has a statutory duty to perform. He cannot afford to take things in a light manner. The Court also is not expected to accept the version of the prosecution as if it is sacred. It must apply its mind on every occasion. Non-application of mind by the trial court has the potential to lead to the paralysis of the conception of fair trial.
17.3. Munna Pandey v. State of Bihar: 2023 KHC 6817: 2023 SCC OnLine SC 1103, it has been held that the judge should not be a passive spectator but should take a proactive role. If Criminal Appeal No.423 of 2014 34 2025:KER:15443 the Courts are to impart justice in a free, fair and effective manner, then the presiding judge cannot afford to remain a mute spectator totally oblivious to the various happenings taking place around him, more particularly, concerning a particular case being tried by him.
The fair trial is possible only when the court takes active interest and elicits all relevant information and material necessary so as to find out the truth for achieving the ultimate goal of dispensing justice with all fairness and impartiality to both the parties.
18. It is no doubt true that the court is not to step into the shoes of the prosecutor or of defense counsel. But it certainly has a duty to bring out the truth. PW12 though not a charge witness, seems to have been examined by the trial court as the competence of PW1 to depose was challenged. PW2 was examined as PW1 refused to depose in the first instance. When it was brought to the notice of the trial court that PW1 would feel comfortable to depose only in the presence of PW2, the latter was summoned, and he was permitted to be present in the court hall during the examination of the former. The defence was given ample opportunity to cross- Criminal Appeal No.423 of 2014 35 2025:KER:15443 examine both the said witnesses. Therefore, I do not find any prejudice caused to the accused.
19. On going through the testimony of PW1, I find that she has given rational answers to the questions put to her in the chief as well as in the cross-examination. Though she was extensively cross-examined, she was able to withstand the same. I find that her testimony has not been discredited or disproved in any manner. Therefore, I find that the trial court was right in holding that she was a competent witness.
20. Though the prosecution has a case that on several days the accused had raped her and that the abuse started from the time PW1 was in the 5th STD, the said case was not accepted as evidence was found unsatisfactory. But the case of rape that took place on 30/12/2010 was believed as the evidence on record was found to be satisfactory. It is true that in Ext.P1 FIS there is no case of penetrative sexual assault. However, Ext.P1 FIS was not given by PW1, but it was given by her uncle, namely, PW4. It is true that PW1 was present at the time when the FIS was given. As pointed Criminal Appeal No.423 of 2014 36 2025:KER:15443 out by the defence counsel, PW1 was questioned by the police twice. It was pointed out that only when PW1 was questioned the second time, she spoke up about the penetrative sexual assault. The prosecution has not furnished any reason(s) which prompted the investigating officer to question PW1 the second time. Even when PW3, the mother, was questioned she also did not have a case that her daughter had been raped by the accused. It is only when PW1 for reasons best known to the police was questioned the second time, she comes out with a new story of rape. This itself is sufficient to show that the prosecution case is unbelievable, goes the argument. I disagree with the aforesaid arguments of the learned defence counsel. As pointed out by the learned defence counsel PW1 was questioned twice by the police. PW1 was questioned for the second time on 23/05/2011 which is seen clarified by PW15, the investigating officer during his examination. It has come out in evidence that PW1 was examined by the doctor on 23/05/2011 at 03:15 p.m. During the examination it was found that her hymen was torn. Going by the testimony of PW15, on the very same day in the Criminal Appeal No.423 of 2014 37 2025:KER:15443 evening PW1 was questioned the second time and her statement was recorded. Finding that the offence of rape was made out, he submitted Ext.P15 report to the effect that the offence under Section 376 was made out and therefore Section 511 of 376 was being deleted and Section 376 IPC being added. Therefore, the reason for questioning PW1 for the second time is apparent from the aforesaid materials on record. Given the mental trauma PW1 was undergoing at that time, the reluctance to give the entire details when initially questioned is understandable. PW3 and PW4 speak of the trauma of PW1. PW1 initially never disclosed the abuse to anybody, not even to her mother. It was only when her mother, seeing her crying, enquired the matter and then she revealed the abuse to the former. No major contradictions have been brought out in her testimony. The medical evidence also substantiates the case of rape. A defence is seen taken that the hymen could be torn, if a person is habituated to masturbation. However, no such question is seen put to PW1 while she was in the box.
21. It is also true that there was some delay in Criminal Appeal No.423 of 2014 38 2025:KER:15443 reporting the matter to the police. However, PW3, the mother of PW1 and PW4 her uncle, have explained the delay. As noticed earlier, initially, PW1 never disclosed the incident to anybody. It was only much later she disclosed the abuse to her mother. Her mental issues also delayed reporting the matter to the police. The intellectual disability of PW1 is not to such an extent to make her incompetent to be a witness. Her intellectual disability was only 50%. She passed her 10th standard with 60% marks. Materials on record show that PW1 could identify people and distinguish between what was right and wrong. She has given quite rational answers to the questions put in the chief as well as in the cross examination. In these circumstances, I find no infirmity in the findings of the trial court calling for an interference by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ak