Jinson v. State of Kerala

Crl.Appeal No.209 of 2018 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 28TH DAY OF MAY 2020 / 7TH JYAISHTA, 1942** ## **CRL.A.No.209 OF 2018** **AGAINST THE JUDGMENT IN SC 604/2012 DATED 03-02-2018 OF SESSIONS COURT,THRISSUR** **CP 58/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY** **CRIME NO.2054/2011 OF Chalakkudy Police Station** ## **APPELLANT/ACCUSED:** **JINSON AGED 29 YEARS S/O. VINCENT,MANAPARAMBIL HOUSE, ALOOR VILLAGE,VELLANCHIRA DESOM, ULOTTUPARAMBU COLONY,THRISSUR.** **BY ADVS. SRI.P.MOHAMED SABAH SMT.SAIPOOJA** **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA.** **SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN** ## **OTHER PRESENT:** **SMT. M.K. PUSHPALATHA, SR.PUBLIC PROSECUTOR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-052020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.209 of 2018 2 ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **Criminal Appeal No.209 of 2018** ## **-----------------------------------------------** ## **Dated this the 28[th] day of May, 2020.** ## **J U D G M E N T** This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C.No.604 of 2012 on the files of the Sessions Court, Thrissur. 2. The appellant is the sole accused in the case. The accused is the neighbour of the de facto complainant girl aged 17 years. The accusation in the case is that on 07.11.2011, at about 3.00 p.m., the accused came to the house of the de-facto complainant and knocked at the door; that the de facto complainant who was alone in the house then came out through the back door of the house and when the accused saw the de facto complainant, after questioning her as to the reason why she did not attend the betrothal ceremony of his sister, the accused caught-hold of the de-facto complainant from behind and took her forcibly from the courtyard of the house to the bedroom through the back door of the house and though the de facto complainant resisted the attempt of the accused and made a hue and cry, the accused overpowered her and committed rape on her. It is also the accusation in the case that the will of the de facto complainant was dominated by the accused for committing the said offence taking advantage Crl.Appeal No.209 of 2018 3 of the fact that she belongs to a scheduled caste. Offences were therefore, alleged against the appellant which are punishable under Sections 376 and 450 of the Indian Penal Code (the IPC) and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989, as it stood prior to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. 3. On the accused pleading not guilty of the charges, the prosecution examined 13 witnesses as PW1 to PW13 and proved 17 documents as Exts.P1 to P17. The prosecution has also caused the witnesses examined on its side to identify MO1 to MO8 material objects. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as 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 consider the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter his defence. The accused did not adduce any evidence. 4. Among the witnesses examined on the side of the prosecution, PW1 is the de facto complainant. PW1 has proved Ext.P1 First Information Statement given by her. PW2 is the mother of PW1. PW3 is the witness to Ext.P2 scene mahazar and Ext.P3 seizure mahazar. PW4 is the doctor who examined the de facto complainant on a reference by the police. PW4 has proved Ext.P4 medical report. PW5 is the Officer of the local authority who issued Ext.P5 birth certificate of the de facto complainant. PW6 is the Village Official who prepared Ext.P6 sketch. PW7 is the Secretary of the local authority who issued Ext.P7 ownership certificate of the house of Crl.Appeal No.209 of 2018 4 the de facto complainant. PW8 is the Tahsildar who issued Exts.P8 and P9 caste certificates of the de facto complainant and the accused. PW9 is the Police Officer who registered the First Information Report. PW10 is the doctor who issued Ext.P11 potency certificate after examining the accused. PW11 is the Police Officer who prepared Exts.P2 and P3 mahazars. PW13 is the Investigating Officer in the case. PW13 has proved Ext.P12 seizure mahazar, Ext.P13 report indicating the particulars of the offences, Ext.P14 forwarding note, Ext.P15 arrest memo, Ext.P16 inspection memo and Ext.P17 arrest notice. 5. On an appraisal of the materials on record, the court below found that the prosecution has not established the guilt of the accused under Section 3(1)(xii) of the SC/ST(Prevention of Atrocities) Act, 1989. The court, however, found that the prosecution has established the guilt of the accused under Sections 450 and 376 of the IPC. The accused was consequently convicted for the aforesaid offences and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.75,000/- and in default of payment of fine, to undergo rigorous imprisonment for four months under Section 376 of the IPC, and to undergo rigorous imprisonment of three years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for two months under Section 450 of the IPC. The court below ordered the substantive sentences to run concurrently. The accused is aggrieved by the conviction and sentence imposed on him, and hence this appeal. 6. Heard Smt.Saipooja, the learned counsel for the appellant and the learned Public Prosecutor. Crl.Appeal No.209 of 2018 5 7. The learned counsel for the appellant has made elaborate submissions on the legal as also factual aspects of the case. The essence of the submissions made by the learned counsel was that it is a case of false implication. Alternatively, it was also contended by the learned counsel that the evidence on record, at any rate, is not sufficient to justify the conviction of the accused for the offences punishable under Sections 450 and 376 of the IPC. The learned counsel has elaborated her submissions pointing out at the outset that the scene of occurrence in the case which is the house of the de facto complainant is one situated in a property measuring three cents within a thickly inhabited residential colony surrounded by several houses where large number of people are admittedly residing. According to the learned counsel, had there been an occurrence as alleged by the prosecution, that too, at about 3.00 p.m., it would have been certainly known to the people in the neighbourhood, especially since the specific case of the prosecution is that the de facto complainant had resisted and made a hue and cry when the accused attempted to take her forcibly to the bedroom of her house. It was argued by the learned counsel that since the prosecution has no case that anybody in the locality knew about the occurrence, it has to be inferred that there was no occurrence as alleged. It was also pointed out by the learned counsel that the case of the prosecution being that the accused had caught-hold of the de facto complainant and took her forcibly to the bedroom through the back door of the house as its front door remained closed, the back door of the house would have remained opened when the mother of the de facto complainant came to the house after some time. It was argued by the learned counsel that the Crl.Appeal No.209 of 2018 6 evidence tendered by the mother of de facto complainant as PW2 indicates that when she came back home, both the front as also the back doors of the house remained locked from inside. If that be so, according to the learned counsel, the case of the prosecution that the accused forcibly took the de facto complainant to the bedroom by overpowering her cannot be believed. It was also argued by the learned counsel that though the de facto complainant deposed that the accused has passed his genital organ into her vagina, she did not say so in the First Information Statement given by her. According to the learned counsel, the aforesaid material omission in the statement given by her to the police casts serious doubts as to the genuineness of the prosecution case. It was also argued by the learned counsel that unusually in this case, the evidence tendered by the de facto complainant is not corroborated by medical evidence. Placing reliance on Ext.P4 medical report and the evidence tendered by PW4, the doctor who has examined the de facto complainant after the occurrence, it was submitted by the learned counsel that there was no conclusive opinion given by the doctor, and the opinion was reserved pending receipt of the report of the chemical examination of the vaginal swab, smear, pubic hair, nail clippings etc. It was pointed out by the learned counsel that though the report of the chemical examination was part of the records, the prosecution chose not to prove the same in evidence. It was the submission of the learned counsel that since the report of the chemical examination was withheld, the prosecution is not entitled to rely on the medical evidence for any purpose whatsoever. It was also pointed out by the learned counsel that the materials on record, especially the evidence of PW2, would indicate that Crl.Appeal No.209 of 2018 7 the de facto complainant was maintaining an affair with the accused and the said circumstance would also cast serious doubt as to the genuineness of the prosecution case. Lastly, it was also submitted by the learned counsel that had this been a case of rape as alleged, the matter would have been reported forthwith to the police, and admittedly, the matter was reported to the police only on the succeeding date. According to the learned counsel, in a case of this nature, the delay of one day in lodging the First Information Report speaks volumes. 8. Per contra, the learned Public Prosecutor has also made elaborate submissions in the matter. At the outset, the learned Public Prosecutor submitted that there was no material omission in the First Information Statement as pointed out by the learned counsel for the appellant. It was argued by her that it was categorically stated by the de facto complainant in the First Information Statement that the accused has committed rape on her. According to the learned Public Prosecutor, it is not necessary for the de facto complainant to state in the First Information Statement that the accused has passed his genital organ into her vagina, for the purpose of setting criminal law in motion. It was the submission of the learned Public Prosecutor that it is sufficient if the de facto complainant states in the First Information Statement about the sexual intercourse committed by the accused against her will and without her consent. It was also argued by the learned Public Prosecutor that in a case of this nature, it is not necessary that the people in the neighbourhood should hear the hue and cry made by the victim, for, the date of occurrence was a rainy day, as come out in evidence. It was also argued by the learned Public Prosecutor Crl.Appeal No.209 of 2018 8 that PW2 has not deposed that the back door of the house was locked when she came to the house on the date of occurrence. It was pointed out that PW2 has only stated in her evidence that the front door of the house was locked from inside when she came back home. It was also pointed out by the learned Public Prosecutor that the materials on record are not sufficient to infer that the de facto complainant was maintaining an affair with the accused. It was argued by the learned Public Prosecutor that having regard to the facts and circumstances the case, the delay of one day in lodging the First Information Report is not fatal at all to the prosecution. 9. In the light of the finding rendered by the court below that the prosecution has not established the guilt of the accused under Section 3(1)(xii) of the SC/ST(Prevention of Atrocities) Act, 1989, the point arises for consideration is whether the prosecution has proved the guilt of the accused under Sections 376 and 450 of the IPC. 10. It is seen that the prosecution relies on the evidence of PW1, the de facto complainant, PW2, the mother of the de facto complainant and PW4, the doctor who has examined the de facto complainant, to prove its case. Among the said witnesses, PW2 has not seen the occurrence. Her evidence is only to the effect that when she came back home after work on the date of occurrence, she found that the doors of the house were locked from inside and when she knocked at the door, PW1 opened the door, and PW2 has then found the accused inside the house. The evidence tendered by PW2 proves at the most only the fact that she has seen the accused inside the house when she came back home after work on the date of occurrence. Needless to say, the said evidence alone is not sufficient for the prosecution Crl.Appeal No.209 of 2018 9 to establish the guilt of the accused. 11. Coming to the evidence of PW4, the doctor who examined the de facto complainant on the succeeding day of the occurrence, it is seen that she has stated before the court that when she examined the de facto complainant, there was no history of any definite complete penetration. PW4 has also stated that what was alleged then was that the assailant has ejaculated on her external genitalia. PW4 has also stated that no bite marks, nail marks or grip contusion were found over the neck, back, breasts, abdomen and thighs of the de facto complainant. Though PW4 has stated that she found an abrasion over the posterior fourchette of the de facto complainant, it was clarified by her in cross examination that such an injury could be caused by reason of a nail contact. In cross examination, the doctor has admitted that she did not give any opinion after the examination of the de facto complainant and that she has reserved her opinion as regards the evidence of recent sexual act and signs of resistance until receipt of the report of the chemical examination of vaginal swab, smear, pubic hair, nail clippings etc. In other words, the doctor was not in a position to give a final opinion as regards the evidence of recent sexual act and signs of resistance after the examination of the de facto complainant. As rightly contended by the learned counsel for the appellant, though the report of the chemical examination was part of the records in the case, the prosecution has not chosen to let in the same in evidence in the matter. In other words, it has to be presumed that the report of chemical examination does not help the prosecution in any manner. If the report of the chemical examination does not help the prosecution in any manner, according to me, the evidence of Crl.Appeal No.209 of 2018 10 PW4 may not be of any help to the prosecution. 12. What remains is the evidence of the de facto complainant. No doubt, the sole evidence of a rape victim can be the basis of a conviction. But, it is trite that in order to convict the accused in a case of this nature solely based on the evidence of the prosecutrix, the prosecutrix shall be a sterling witness. In **Rai Sandeep v. State (NCT of Delhi)** , (2012) 8 SCC 21, the Apex Court had occasion to consider the question as to who can be said to be a sterling witness. Paragraph 22 of the decision of the Apex Court in the said case reads thus: “In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of Crl.Appeal No.209 of 2018 11 the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” The decision aforesaid has been quoted with approval by the Apex Court in its recent decision in Criminal Appeal No.264 of 2020, decided on 14.2.2020. It is evident from the aforesaid decisions that the evidence of a sterling witness is one that is natural and consistent with the case of the prosecution qua the accused. Such witnesses shall, under no circumstances, give room for any doubt as to the factum of the occurrence and the evidence shall have co-relation with each and everyone of other supporting materials including expert opinions. The Apex Court has held in the said cases that the test applied in cases involving circumstantial evidence, viz, that there should not be any missing link in the chain of circumstances to hold the accused guilty of the offences, applies in the matter of accepting such evidence. In other words, the version of such witnesses on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary, and material objects should match the said version in material particulars. The moot question in the case, therefore, is whether the de facto complainant can be said to be a sterling witness so as to convict the accused in the case solely based on her evidence. Crl.Appeal No.209 of 2018 12 13. As noted, the scene of occurrence in the case is the house of the de facto complainant. Ext.P2 scene mahazar reveals that the house of the de facto complainant is one situated in a small extent of property measuring 3 cents in a thickly inhabited residential colony surrounded by several other residential houses within its close proximity. The time of occurrence, going by the case of the prosecution, was 3 p.m. As noted, the specific case of the prosecution is that the accused caught-hold of the de facto complainant from behind at the courtyard of her house, took her forcibly to the bedroom inside the house through the back door of the house, overpowered the de facto complainant by thrashing on her cheek and thereafter committed rape on her. As rightly pointed out by the learned counsel for the appellant, an occurrence of this nature happening in day light in a place like the scene of occurrence would certainly be revealed to the people in the neighbourhood, especially when the de facto complainant has a case that she resisted the attempt of the accused and made a hue and cry. Further, had the occurrence been as alleged, there would have been no occasion for anyone to close the back door of the house. As pointed out by the learned Public Prosecutor, the mother of the de facto complainant as PW2 has given categoric evidence to the effect that when she came back home, the doors of the house were closed from inside. PW2 has also deposed that when she called her daughter, she opened the door. The relevant deposition of PW2 reads thus:- "ഞ�ൻ വ�ട�ൽ ച�നപ��ൾ വ�ത�ച�ല�� അടചപട�യ�ര�കകയ�യ�രന. മകച� വ **�** �ചപ��ൾ അ വൾ വ�ത�ൽ തറന.” Further, had the occurrence been as one set out by the prosecution, Crl.Appeal No.209 of 2018 13 according to me, the accused should have been the person who must have opened the door when the mother of the de facto complainant reached home, to flee away from the scene. The fact that the accused was hiding inside the house while the de facto complainant opened the door, casts suspicion as to the genuineness of the prosecution case. Further, the de facto complainant has a specific case that the accused has thrashed on her cheek for the purpose of overpowering her while taking her forcefully inside the house. Had it been so, there would have been at least an erythema or tenderness on her cheek and PW4 doctor has ruled out the same in Ext.P4 report. Again, PW4 doctor has categorically stated in her evidence that the de facto complainant has alleged when she was brought before her for examination that her mother beat her with a stick on her thighs. The prosecution has not explained the said conduct on the part of the mother of the de facto complainant. Had the occurrence been as alleged, there would have been no occasion at all for the mother of the de facto complainant to beat her when she was found along with the accused. The aforesaid improbabilities and inconsistencies in the evidence adduced by the prosecution compels me to hold that PW1, the de facto complainant in the case on hand cannot be said to be a sterling witness so as to convict the accused solely based on her evidence in a case of this nature. 14. The accused has a case that the de facto complainant was maintaining an affair with him. In order to establish the said case, the accused has relied on the evidence of the de facto complainant herself to the effect that she used to travel along with the accused in his autorikshaw. The accused also relies on the evidence given by the mother of the de facto Crl.Appeal No.209 of 2018 14 complainant to the effect that the accused proposed to marry the de facto complainant, for the said purpose. When the materials on record are analysed in the light of the aforesaid case of the accused, I am of the view that the occurrence in the case might not have been one as set out by the prosecution. If that be so, the accused is entitled to the benefit of doubt. 15. A perusal of the impugned judgment indicates that it is based on the evidence of PW1, the de facto complainant, PW2, the mother of the de facto complainant and PW4, the doctor who examined the de facto complainant, that the court below came to the conclusion that the prosecution has established the guilt of the accused. In so far as it is found that the said conclusion cannot be arrived at on the basis of the said evidence, the impugned judgement is liable to be reversed. 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.** rkj/PV