Laju, S/o Lakshmanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934** **Crl.Rev.Pet.No. 2529 of 2005 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA.1013/2003 of VI ADDL. SESSIONS COURT, ERNAKULAM** **AGAINST THE JUDGMENT IN SC.181/2001 of PRINCIPAL ASSISTANT SESSIONS COURT,KOCHI** **-------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------** **LAJU, S/O.LAKSHMANAN, MUNTHUMPULLY VEETTIL, PERUMPADAPPAU DESOM EDAKOCHI VILLAGE.** **BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY SRI.VARGHESE BABU** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **-------------------------------------** **STATE OF KERALA CIRCLE INSPECTOR OF POLICE, PALLURUTHY.** **BY PUBLIC PROSECUTOR SMT.R.REMA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **VK** ## **P.BHAVADASAN, J.** -----------------------------------------Crl.R.P. No. 2529 of 2005 -----------------------------------------Dated this the 18[th] day of March, 2013 ## **O R D E R** The accused was prosecuted for the offence punishable under Section 511 of 376. He was found guilty of the same by the trial court. He was therefore convicted and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 10,000/- and in default of payment of which he had to suffer simple imprisonment for a further period of one year. Set off as per law was allowed. It was also directed that if the fine amount was realized, it is to be given to the victim. 2. The aggrieved accused carried the matter in appeal as Crl.A.1013 of 2003 before the Sessions Court, Ernakulam. The sessions Court, Ernakulam after independent evaluation of the evidence, came to the conclusion that the offence under Section 511 of 376 cannot be attracted to the facts of the case but however an offence ## **Crl.R.P. No.2529/2005** **-2-** under Section 354 of IPC is established. Therefore, the conviction was altered to one under Section 354 IPC and he was sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 3,000/- with a default clause of six months. 3. This is an unfortunate case of a handicapped child being the victim of sexual harassment at the hands of the accused. PW1's daughter, it appears, is mentally challenged. She was at home at the relevant time i.e. on 04.05.1998. The prosecution allegation seems to be that the accused under the guise of offering Guava to her, called her and when she went near him, he then committed the offensive act made mention of in the FIS. When the mother who was not at home at the relevant time returned home, child was seen crying and when the mother enquired about the reason, child is said to have conveyed the incident to her. At the relevant time, PW2, the husband of PW1 was not at home. When he reached home in the evening, the **Crl.R.P. No.2529/2005** **-3-** information was conveyed to him also and on the next day i.e. On 05.05.1998. PW1 laid Ext.P1, First Information Statement. That was recorded by PW9 who registered crime as per Ext.P7, FIR. The victim was examined by PW5 who issued Ext.P3 certificate. Investigation was taken over by PW10 who prepared Ext.P5, scene mahazar etc. and had the accused arrested and subjected to potency test. Further investigation was conducted by PW11 who recorded statements of witnesses, completed investigation and laid charge before the court. 4. The court before whom the final report was laid, took cognizance of the offence. Finding that the offence is exclusively triable by a court of sessions, the case was committed to Sessions Court under Section 209 of Cr.P.C. The said court made over the case to Principal Assistant Sessions Court, Kochi, for trial and disposal. The said court on receipt of records and on appearance of the accused framed charges to which the accused pleaded not guilty and **-4-** ## **Crl.R.P. No.2529/2005** claimed to be tried. The prosecution had PWs 1 to 11 examined and Exts. P1 to P9 marked. After the close of prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. Finding that he could not be acquitted under Section 232 Cr.P.C. he was asked to enter on his defence. No defence evidence was adduced. The trial court, on an appreciation of the evidence mainly that of PWs 1 and 2, was greatly impressed by the evidence of PW1, found that the accused has committed the offence as alleged by the prosecution. In appeal, however, the appellate court also found the evidence of PW1 to be convincing enough, but on facts found that the offence under Section 511 of 376 would not be attracted and only offence under Section 354 is made out. Conviction and sentence were modified by the lower appellate court as already stated. The said conviction and sentence are **Crl.R.P. No.2529/2005** **-5-** assailed in this revision. 5. The learned counsel appearing for the revision petitioner assailed the findings of the lower court on two main grounds. The conveyance of information by the victim to her mother which forms the basis of the prosecution cannot fall under Section 6 of the Indian Evidence Act due to the delay between commission of the act and the time at which the said information was conveyed to PW1. Other ground taken is that on scanning through the evidence, it is impossible to find that the identity of the accused has been established. Elaborating on the first point it was contended that the incident is said to have taken place near a compound wall and the child was found sitting in the courtyard of the house when the mother came home and that was long after the incident, it was thereafter that the information was conveyed to the mother. Relying on the decision reported in **Sukhar v. State of U.P. [1999 (9) SCC 507]** it was contended that under such circumstances, ## **Crl.R.P. No.2529/2005** **-6-** the evidence of PW1 cannot come under the category of _res gestae_ evidence that it has only to be ignored. The evidence of PW1 is ignored, there is no other evidence in the case. It is also pointed out that the child who was the victim of assault is not in a position to identify the accused in court and also that there is nothing in the FIS to show that there was any identification details given by the child so as to identify the accused. It is also pointed out that even in the box, PW1 does not actually give the features of identification and she has only stated that she came to know it was the accused who had committed the offence. 6. These items of evidence according to the learned counsel for the revision petitioner are totally insufficient to come to the conclusion that it was the accused who had committed the offence. Accordingly it is contended that the conviction and sentence as modified by the lower appellate court are clearly unsustainable in law. **Crl.R.P. No.2529/2005** **-7-** 7. The learned Public Prosecutor on the other hand contended that the victim could have conveyed the information only when the mother reached home and not before and that principles of _res gestae_ had to be considered in relation to the time, place and person and not in isolation. When PW1 reached the home, she found her child crying and enquired about the reason. Then the child conveyed the information. The principle of _res gestae_ regarding proximity of time is based on the theory that there should not be time for the witness to make developments, embellishments etc. In the case on hand, the learned Public Prosecutor pointed out that the child was incapable of embellishments and developments as her mental condition was such and therefore the theory of proximity may not strictly apply in the facts of the case. The child had occasion to meet the mother first after the incident was over and then she conveyed the news to her mother. Therefore, it is contended by the learned Public Prosecutor that the ## **Crl.R.P. No.2529/2005** **-8-** principle laid down in the decisions referred to by the learned counsel for the revision petitioner have no application to the facts of the case. 8. Regarding the identity, it was contended by the learned Public Prosecutor that the PW1 has stated that when she had come to know about the act she learned that it was the accused who had committed the offence. She has also stated in cross examination the special feature which enabled her to identify the accused. It was pointed out that there is no challenge regarding these aspects in the cross examination and the identification of PW1 is sufficient to show that it was the accused who had committed the assault. 9. The learned Public Prosecutor reminded this Court that this Court is exercising its revisional jurisdiction and the scope of interference is considerably limited. A reappreciation of the evidence is unwarranted unless it is shown that the findings suffer from perversity or are totally **Crl.R.P. No.2529/2005** **-9-** contrary to the evidence on record. No such infirmity can be pointed out in the case on hand and both the courts below has found that the evidence of PW1 is acceptable and convincing and there is no reason for this Court to take a different view. In short, the conviction is that the revision is without merits and only to be dismissed. 10. It is unfortunate that a handicapped child is the victim in this case. She was produced in court and the trial court has noticed the features of the victim and her inability to respond to almost anything. 11. The solitary evidence regarding the incident now is given by PW1. Of course, she is not an occurrence witness. The prosecution did examine a few witnesses to show the presence of the accused at the spot but unfortunately for the prosecution case, they betrayed the prosecution. The prosecution derived no help from their evidence though it is not a case where the prosecution did not attempt independent corroborative evidence. **Crl.R.P. No.2529/2005** **-10-** 12. Coming to the evidence of PW1, it is true that she says that she was not at home at the relevant time. When she came home in the evening, she found her child crying. She enquired about the reason and the child conveyed the incident to her. The contention that the child had only stated that "Guava ÄKßÜï" is not correct. Going by the evidence of PW1, the child narrated the whole episode and also from the narration given by the child, PW1 says that she was able to gather that it was the accused who had committed the offence. It is significant to notice that she has very frankly conceded that some of the statements found in the Ext.P1 statement are not what has been stated by her and she had no such case also and that shows that she had no intention to falsely implicate the accused. 13. The principle of _res gestae_ has to be considered in the context of each case. There is no straight jacket formula regarding application of the principle. On going through the fact of the decision reported in **Sukhar v. State of U.P.** **Crl.R.P. No.2529/2005** **-11-** **[1999 (9) SCC 507]** it can be seen that two persons reached the spot almost immediately after the incident and it was in their context the issue was considered. In the case on hand one has to remember that a child is a mentally challenged child and there was no one at home nor was there any one available to whom the child was conveyed the information. The child after the incident near the compound wall, came to her house and sat on the courtyard crying. When the mother finds the child crying, she enquires about it and finds out the reason. Apart from the fact that the child is mentally challenged there is no reason to believe that she had any capacity to develop, manipulate or to make embellishments. This aspect cannot be overlooked in this case. 14. If one is to hold otherwise, it would mean that mentally challenged children can be subjected to offences and if there is no direct evidence regarding the same no conviction can be entered into. Surely that cannot be the ## **Crl.R.P. No.2529/2005** **-12-** law. The proximity of time, place and person in this case is inconsonance with Section 6 of the Indian Evidence Act. The fact that the mother was first to see the victim after the incident and the victim being the state of what she had been described by the lower court it cannot be said that there was any chance for embellishment or development. Considering the view from that angle, there is no reason as to why the evidence of PW1 should not be accepted. 15. Regarding the identity of the accused, PW1 had clearly stated in her evidence that she from the narration given by the child, came to know that it was the accused who had committed the offence. The accused is also said to be residing nearby. In cross examination of PW1, it is stated as follows: “ ÌáißÎÞwc¢ çÈøçJ ©UÄÞÃí. µáGß ÉùEâÄKÄáæÕºîßGÞÃí ¾ÞX ¦æ{ ÉùEÄí.åÉÜïá æÉÞLßÏ ¦{ÞæÃKí ¥ÕZ ÉùEá.” ## **Crl.R.P. No.2529/2005** **-13-** 16. There is no suggestion to PW1 that either the accused did not have that typical feature or that there was any reason as to why she should falsely implicate the accused. Of Course, in the First Information Statement i.e. Ext.P1, it is stated that she came to know it from her husband but that portion of statement of PW1 was not brought to the notice of PW1 or there was no attempt to show that there was contradiction with regard to Ext.P1 and the testimony of PW1 in court. Thus, PW1 has given convincing evidence regarding the manner in which she was able to identify the accused. 17. Apart from all these facts, there is no suggestion to PW1 or PW2 that they had any axe to grind against the accused even though the Police Officer it is suggested that they had occasion to frame the accused for having assaulted the police men. It is too difficult to believe that PWs 1 and 2 would have allowed their daughter to made a subject for the police to wreck vengeance on the accused. ## **Crl.R.P. No.2529/2005** **-14-** 18. In this context one has to notice that no suggestion whatsoever is made to PWs 1 and 2 that accused had nothing to do with the incident and that he has been falsely implicated due to any oblique motive or ill intention. Both the courts below have considered the evidence of PW1 in considerable detail and have come to the conclusion that the evidence of PW1 stands scrutiny and is convincing and cogent enough. As rightly pointed out by the learned Public Prosecutor that being a possible view, it could not be said that the findings are perverse or are contrary to the evidence. If that be so, the finding that the incident has occurred as alleged and it was the accused who had committed the act does not call interference. 19. Coming to the question of offence committed by the accused, as rightly noticed by the lower appellate court, the offence under Section 354 alone is made out. The trial court seems to be over enthusiastic in its approach to find the accused guilty of the offence punishable under Section ## **Crl.R.P. No.2529/2005** **-15-** 511 of 376. None of the ingredients found to attract the offence under Section 511 of 376 is either spoken to by PW1 or contained in Ext.P1 or any medical evidence to establish the said fact. The trial court has erred grievously in come into the conclusion that the offence under Section 511 of 376 is made out. 20. The acts alleged to have been committed by the accused stands established from the evidence of PW1. The lower appellate court was fully justified in come into the conclusion that offence under Section 354 is made out. 21. Then comes the question regarding the sentence. The incident is said to have taken place in 1998. 15 years have been elapsed. Things would have quietened down and calm must prevailing in the area. It may not be appropriate to upset that situation and kick up the dust once again. Considering those facts, it is felt that some leniency can be shown regarding the sentence. After having given anxious consideration to the nature of the act committed by the ## **Crl.R.P. No.2529/2005** **-16-** accused, the offence alleged to have been committed by him and the manner in which the offence committed etc., it is felt that the sentence imposed by the lower appellate court is on the high side. A lesser sentence alone needs to be awarded. 22. It is contended that statement of person who is found to be an incompetent witness to another person can have little value and therefore the information conveyed to PW1 cannot be of any value. 23. Here, one has to notice the plight in which the victim is placed. It is not as if that she is totally incapable of responding. Even the evidence of PW1 shows that she can talk through signs and gestures. Even PW1 says that she came to know about the incident from the victim through gestures only. The trial court has noticed that the child was incapable of understanding the questions put to her and she was not capable of giving cogent answers or in other words the child did not successfully get over the voice dire test. **Crl.R.P. No.2529/2005** **-17-** Even assuming to be so, the evidence of PW1 is very clear to the effect that the child used to communicate to her through gestures and signs and she being the mother is capable of understanding her child’s gestures and signs. There is no reason to disbelieve the mother when she says that she understood the gestures and signs made by the child and gathered what had actually happened to the child. In the light of those facts the argument does not merit consideration. Considering the entire aspects, it is felt that the sentence of six months simple imprisonment with a fine of Rs. 20,000/- will be sufficient. In default of payment of which he is to suffer simple imprisonment for a further period of two months. Set off as per law was allowed. If the fine amount is realized, it shall be paid as compensation to PW1 on behalf of the victim. ## **P.BHAVADASAN, JUDGE** ds