Nazar, S/o. Enu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942** ## **CRL.A.No.520 OF 2018** **AGAINST THE JUDGMENT IN SC 356/2012 DATED 05-04-2018 OF SPECIAL COURT UNDER POCSO ACT, PALAKKAD** **CRIME NO.9/2006 OF Chalissery Police Station , Palakkad** ## **APPELLANT/ACCUSED:** **NAZAR, S/O. ENU, AGED 47 YEARS, MANJAKKADU HOUSE, MAYILADIKUNNU, KAPPUR, PALAKKAD DISTRICT.** **BY ADVS. SRI.P.A.MOHAMMED SHAH SRI.C.R.SYAMKUMAR SRI.K.ARJUN VENUGOPAL SHRI.ASWIN KUMAR M J SMT.HELEN P.A. SRI.SHAHIR SHOWKATH ALI** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C** ## **SMT.PUSHPALATHA SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2605-2020, THE COURT ON 01-06-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.520 of 2018 2 ## **P.B.SURESH KUMAR, J.** **----------------------------------------------Criminal Appeal No.520 of 2018 ----------------------------------------------Dated this the 1[st] day of June, 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.356 of 2012 on the files of the 1[st] Additional Sessions Court, Palakkad. 2. The appellant is the sole accused in the case. The accusation in the case is that on 16.09.2005, at about 3 p.m., the accused has committed rape on the victim girl aged 13 years at the rear room of his grocery shop situated at Myiladikunnu in Kappur Village and thereby committed the offence punishable under Section 376 of the Indian Penal Code (the IPC). 3. On the accused pleading not guilty of the charge levelled against him, the prosecution examined 15 witnesses as PW1 to PW15 and proved 15 documents as Crl.Appeal No.520 of 2018 3 Exts.P1 to P15. The prosecution has also caused one of its witnesses to identify MO1 series 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 find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence. 4. Among the witnesses examined in the case, PW1 is the victim girl. PW2 is the father of PW1. PW3 is the mother of PW1. PW4 is the witness to Ext.P1 scene mahazar. PW5 is the witness to Ext.P2 seizure mahazar. PW6 is the doctor who examined the victim girl and issued Ext.P3 report of medical examination. PW7 is the headmaster of the school where the victim girl was pursuing her studies at the time of occurrence. PW7 has proved Ext.P4 certificate issued by him indicating the date of birth of the victim girl. PW8 is the Secretary of the local authority who issued ownership certificate Crl.Appeal No.520 of 2018 4 relating to the shop of the accused. PW9 is the Village Official who prepared Ext.P6 scene plan. PW10 is the Police Officer who registered Ext.P7 First Information Report, on the basis of the complaint of PW3. PW11 is the doctor who issued Ext.P8 potency certificate after examining the accused. PW12 is the Investigating Officer in the case who recorded the statements of some of the witnesses including PW1. PW13 is the police officer who furnished Ext.P9 property list before the court. PW14 is the police officer who submitted Ext.P10 forwarding note for chemical examination. PW15 is the police officer who completed the investigation and submitted the final report in the matter. PW15 has proved Ext.P11 arrest memo, Ext.P12 inspection memo, Ext.P13 report, Ext.P14 chemical analysis report and Ext.P15 chemical analysis report. 5. On an appraisal of the evidence on record, the court below found that the prosecution has established the guilt of the accused under Section 376 of the IPC and consequently convicted and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,00,000/- and in default Crl.Appeal No.520 of 2018 5 of payment of fine, to undergo rigorous imprisonment for one year. The accused is aggrieved by the conviction and sentence imposed on him. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor. 7. The learned counsel for the appellant has made elaborate submissions in the matter. The essence of the submissions made by the learned counsel was that the accused has been falsely implicated in the case. At the outset, it was pointed out by the learned counsel that the occurrence in the case is one that took place allegedly on 16.09.2005 and the first information report was registered only after about four months, on 10.01.2006. It was argued that the long delay in initiating the proceedings has not been properly explained by the prosecution, and in the absence of satisfactory explanation for the delay, that too, in a case where the allegation is that the accused has committed rape on a minor girl aged 13 years, the court below was not justified in convicting the accused, for, such a huge delay would certainly cause serious doubts as to Crl.Appeal No.520 of 2018 6 the genuineness of the case. It was also contended by the learned counsel that there is no evidence in the case except the oral testimony of the victim girl, and the same cannot be the sole basis of the conviction of the accused since it cannot be said to be an evidence of sterling quality. The learned counsel has elaborated the said submission pointing out one by one, the circumstances brought out in evidences which would indicate that the evidence tendered by PW1 is not reliable and trustworthy. It was also contended by the learned counsel that the evidence on record would only probabilise the defence of the accused that the case is one initiated at the instance of the father of the victim girl with whom the victim girl is residing, to wreak vengeance on the accused who was maintaining an illicit relationship with his wife, the mother of the victim girl. 8. Per contra, the learned Public Prosecutor has stiffly refuted the submission made by the learned counsel for the appellant that the prosecution relies only on the evidence of the prosecutrix, PW1 to prove the guilt of the accused. It was pointed out by the learned Public Prosecutor that the evidence Crl.Appeal No.520 of 2018 7 tendered by PW1 is corroborated by the medical evidence adduced by the prosecution. It was pointed that PW6 has categorically given evidence that when she examined the victim girl, her hymen was found torn. According to the learned Public Prosecutor, the evidence tendered by PW6 would certainly probabilise the prosecution case. It was also argued by the learned Public Prosecutor that trivial contradictions and inconsistencies in the evidence tendered by PW1 is not a reason at all to disregard her evidence. In short, the submissions made by the learned Public Prosecutor was that the impugned decision does not call for any interference. 9. In reply to the submissions made by the learned Public Prosecutor that the medical evidence probabilises the case set out by the prosecution, it was submitted by the learned counsel for the appellant that what is relied on by the prosecution from the medical evidence to corroborate the evidence of the victim girl is that the hymen of the victim girl was found torn at the time of medical examination. It was argued by the learned counsel that the Crl.Appeal No.520 of 2018 8 medical examination of the victim girl was conducted almost four months after the alleged occurrence. It was pointed out by the learned counsel that at the time of examination, seminal constituents such as vaginal swab, vaginal smear etc. were taken by the doctor for chemical examination and Ext.P15 report indicates that human semen and spermatozoa were found in the seminal constituents. The submission of the learned counsel was that such a result from seminal constituents is possible only if samples were taken within 3 to 4 days, and since samples of the the seminal constituents were taken after almost four months of the alleged occurrence, it has to be inferred that the victim girl was subjected to sexual abuse. If the victim girl was subjected to sexual abuse, the tear of the hymen can never be attributed to the alleged occurrence, submits the counsel. 10. I have considered the contentions raised by the learned counsel on either side and perused the materials on record. The point arises for consideration is whether the prosecution has established the guilt of the accused under Crl.Appeal No.520 of 2018 9 Section 376 of the IPC. 11. As noted, the alleged occurrence took place on 16.09.2005. The crime was registered only on 10.01.2006. PW6, the doctor examined the victim girl on 12.01.2006. Ext.P3 report of the medical examination indicates that the vaginal swab, vaginal smear, nail and hair clippings etc. of the accused were taken by PW6 for chemical examination at time of examination of the victim girl on 12.01.2006. Ext.P15 report of the chemical analysis indicates that human semen and spermatozoa were detected in the samples of vaginal swab and smear taken from the body of the victim girl on 12.01.2006. The prosecution has no case that there was any connection between the victim girl and the accused after the alleged date of occurrence namely 16.09.2005. In other words, as rightly contended by the learned counsel for the appellant, Ext.P15 indicates that the victim girl was subjected to sexual abuse after the date of the alleged occurrence, for, it is not disputed before me by the learned Public Prosecutor that the human semen and spermatozoa may not remain in the body for more Crl.Appeal No.520 of 2018 10 than 3 to 4 days after the sexual intercourse. In the circumstances, I am constrained to hold that the tear of the hymen of the victim girl cannot be attributed to the occurrence alleged by the prosecution. If that be so, the only evidence available to prove the occurrence is the evidence tendered by the victim girl, namely PW1. 12. No doubt, the evidence of a rape victim can be the sole basis of a conviction. But, it is trite that in order to base a conviction solely on the evidence of the victim, the evidence of the victim shall be of a sterling quality. 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 judgment 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 Crl.Appeal No.520 of 2018 11 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 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 Crl.Appeal No.520 of 2018 12 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 appears natural and consistent with the case of the prosecution qua the accused. It was held that 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. It was also held in the said cases that such evidence should also satisfy 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 offence. To put it differently, 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 therefore, is whether the de facto complainant can be said to be a sterling witness so as to justify the conviction of the accused solely Crl.Appeal No.520 of 2018 13 ## based on her evidence. 13. The defence of the accused in the case, as discernible from the suggestions made by the learned counsel for the accused to the witnesses examined on the side of the prosecution is that the complaint, on the basis of which the case is registered, is one sent by the mother of the victim girl at the instance of the father of the victim girl, who has an axe to grind against the accused, for, he entertained a doubt that he was maintaining an illicit relationship with his wife, the mother of the victim girl. As a matter of fact, it was categorically stated by PW1, the victim girl in her crossexamination that the accused and others used to come to her house late night when her father was abroad. She has stated in her evidence that the persons who were visiting her house .late night when her father was abroad used to have sexual intercourse with her mother. It was also stated by PW1 that she has informed her father about this, and her father came back from abroad within three days after the aforesaid information was passed on to him. PW2, the father of the victim girl has Crl.Appeal No.520 of 2018 14 deposed in chief examination itself that on coming to know of the information passed on to him by the victim girl as stated above, he came back from abroad during October, 2005; that he made enquiries with others about the information passed on to him by the victim girl; that on enquiries, it was found that information was correct; that consequently he abandoned his wife and married another lady and is residing with that lady along with his children. Insofar as it is brought out in evidence that the father of the victim girl has abandoned his wife, the mother of the victim girl, as he found on enquiry that the mother of the victim girl was maintaining an illicit affair with the accused, it is certainly possible to infer that the father of the victim girl was maintaining ill will and hatred against the accused, especially since the said fact has been admitted by the victim girl in her evidence. It has come out that the victim girl has been residing with her siblings and father ever since October, 2005, after he came back from abroad. 14. As noted, the case is one registered during January, 2006 while the victim girl was residing with this father. Crl.Appeal No.520 of 2018 15 It has come out that neither the victim girl nor her father had lodged any complaint against the accused concerning the alleged sexual assault made by the accused on the victim girl which is the subject matter of the case. Instead, it is seen that it is based on a complaint sent in the name of the mother of the victim girl before the deputy superintendent of Police concerned on 11.1.2006 that the case was registered. The said complaint is part of Ext.P7 First Information Report. It is stated in the complaint that about two months prior to the complaint, the accused had committed rape on the victim girl. It is also stated in the complaint that when the victim girl cried aloud on account of the sexual assault, the people in the neighbourhood knew about the same. First of all, had there been an occurrence as alleged in the complaint, the same would have certainly come to the notice of the Police, especially when the victim girl was aged only about twelve years then. Further, had there been an occurrence as alleged in the complaint, there is no explanation why PW3 has not preferred a complaint to the Police for a long period of almost 2 months. Be that as it may. Crl.Appeal No.520 of 2018 16 The mother of the victim girl states further in the complaint that since the alleged sexual assault made by the accused on the victim girl as disclosed in the complaint became known to the people, the accused is harassing and threatening her. The mother of the victim girl states further in the complaint that when her husband enquired about the sexual assault made by the accused on the victim girl, the accused threatened him and consequently her husband abandoned her. The aforesaid recitals in the complaint do not appear to be in tune with the common course of natural events and human conduct. Further, despite all the aforesaid recitals, the prayer in the complaint was one to afford protection to her from the accused. The mother of the victim girl was examined in the proceedings as PW3. She has stated that she has not sent any complaint to anybody. She might or might not be lying. What is discernible, however, from the aforesaid facts is that the complaint, on the basis of which the crime is registered, is either one sent by the father of the victim girl himself in the name of his wife or one caused to be sent by him through his wife, and not one lodged Crl.Appeal No.520 of 2018 17 with the bona fide intention of setting criminal law in motion against the accused in respect of the occurrence alleged in the complaint concerning the victim girl. 15. Further, as noted, the alleged occurrence took place during September, 2005. The case was registered almost after four months, that too, I must state, sou motu on the information gathered from the complaint purported to have been sent by the mother of the victim girl. There is nothing wrong in registering the case based on the information gathered from such a complaint. But, the said circumstance is certainly a fact that is to be taken note of while appreciating the evidence in the case for, if the accused had abused the victim girl as alleged, if not her mother, who admittedly had some relationship with the accused, the father who has come back from abroad, would have certainly lodged a complaint against the accused, for it has come out from the evidence of the victim girl that she has divulged about the alleged occurrence to her father. The reliability and acceptability of the evidence tendered by PW1 has to be considered in the aforesaid Crl.Appeal No.520 of 2018 18 background. 16. PW1 deposed that she could not recollect the date of the alleged occurrence. She, however, stated that on the relevant day, when she went to the shop of the accused, he was alone in the shop and he required her to sit on his lap. It was stated by PW1 that since she did not sit on his lap, the accused made her sit on his lap. It was stated by her that a person named Chandran came to the shop at that time and she could therefore, escape from the shop, after purchasing the articles she wanted. It was stated by her that the accused then required the victim girl to come again on the next day. It was stated by her that on the next day, by about 3 pm, when she went to the shop, the accused required her to lie down in the rear room of the shop over a jute bag. It was stated by PW1 that the accused thereafter required her to remove her clothes. It was stated by her that later, the accused removed her clothes and placed his genital organ into her vagina. It was stated by her that a few persons came to the shop then for purchasing articles and the accused accordingly left that room. It was Crl.Appeal No.520 of 2018 19 stated by PW1 that after some time, the accused came back and let her go, and directed her to come back again on the next day. It was stated by PW1 that she went to the shop of the accused again on the next day. When she went to the shop on the next day, it was stated by her that the accused caught hold of her hands. It was stated by her that by the time one Maimuna came to the shop and the accused then let PW1 go from the shop. Prima facie, the aforesaid evidence appears to be a bit artificial, for, it would not be normal human conduct of a girl aged thirteen years who was subjected to sexual abuse, in the manner narrated by the prosecution. The evidence appears as if PW1 was going voluntarily everyday as required by the accused. No circumstances that forced the victim girl to go to the shop of the accused despite the attempts made by him to abuse her was brought on record. Instead, the evidence tendered by the victim girl to justify her alleged conduct in making herself available in the shop of the accused is that her mother has directed her to co-operate with the accused and her father told her not to worry, when she informed about the Crl.Appeal No.520 of 2018 20 alleged conduct of the accused. Prima facie, it is difficult to believe that parents of a 13 year old girl would take the stand as disclosed by the victim girl. At any rate, it is difficult to believe that the father of the girl who rushed back to his house from abroad and abandoned his wife on coming to know of her illicit relationships with strangers, would not complain forthwith about the occurrence, especially when the victim girl has stated that her father came back from abroad within three days after the occurrence. Be that as it may. It has come out in evidence that PW1 has not stated in her previous statement to the Police that the the accused has kept a jute bag in the rear room of his shop. Likewise, it has come out that she has not stated in her previous statement to the Police that the accused required her to remove her clothes. Similarly, it has come out that the evidence tendered by the victim girl as regards various other facts which, though not in issue, but connected with the fact in issue as to form part of the same transaction, were not stated in her previous statement to the Police. The relevant evidence tendered by the Police official who recorded the statement as Crl.Appeal No.520 of 2018 21 ## PW10 reads thus: "പപിററ്റേനന്ന് ഞഞാൻ കടയപിൽ റപഞായപി എനന" CW1 എനപികന്ന് മമഞാഴപി തനപിടപില. "വരഞാത് ന്ന് എനന പ്രതപി കടയപിൽ ഇരപിക് യഞായപിരുന" എനന മമഞാഴപി തനപിടപില. "മുറപിയപിൽ cement-ൻമറ കഞാലപി ചഞാകന്ന് ഇടപിരുന എനന്ന് മമഞാഴപി ." x x x x x x തനപിടപില x x x x x x x "dress ഊരഞാൻ പ്രതപി പറഞ്ഞു എനന്ന് മമഞാഴപി തനപിടപില. "കടയപിൽ ആളുകൾ വന" എനന്ന് മമഞാഴപി തനപിടപില. "പ്രതപി എറനഞാടന്ന് ഇരപികഞാൻ പറഞ്ഞു .ഞഞാൻ തപിരപിച്ചു വരഞാന" എനന്ന് പറഞ്ഞു എനന്ന് മമഞാഴപി തനപിടപില. "പ്രതപി കുറ്റേപിയപിട്ടു പുറത്തു പുറത്തു റപഞായപി" എനന്ന് . മമഞാഴപി തനപിടപില പുറത്തു വന ആൾകഞാർകന്ന് സഞാധനങ്ങൾ മകഞാടുത്തു എനന്ന് പറഞപിടപില." ആൾകഞാർ പ്രതപിറയഞാടന്ന് എനഞാ പുറത്തു കഞാണഞാത് എനന്ന് റചഞാദപിച്ചു എനന്ന് മമഞാഴപി . തനപിടപില മൂതന ഒഴപികഞാൻ റപഞായതഞാണന്ന് എനന്ന് പ്രതപി പറഞ്ഞു . എ നന്ന് മമഞാഴപി തനപിടപില റഡഞാർ തുറനന്ന് എറനഞാടന്ന് നഞാമള . വരുറമഞാ എനന്ന് റചഞാദപിച്ചു എനന്ന് മമഞാഴപി തനപിടപില പ്രതപി . എറനഞാടന്ന് ഇനമല കുറച്ചു കഞാരര്യങ്ങൾ ഉണഞായപിട്ടുണന്ന് ഇനന്ന് Crl.Appeal No.520 of 2018 22 . കക കുറച്ചു കൂടപി കഞാണപികഞാന എനന മമഞാഴപി തനപിടപില പപിടപിച്ചറപഞാൾ വപിയർക്കുനണഞായപിരുന എനന്ന് മമഞാഴപി . തനപിടപില എറനഞാടന്ന് പ്രതപി പപിററ്റേനന്ന് വരഞാ ൻ പറഞ്ഞു എനന്ന് . മമഞാഴപി തനപിടപില It is seen that the aforesaid answers were elicited from the witness after complying with the provisions contained in Section 145 the evidence Act. When the evidence tendered by the victim girl is analysed in the background of the fact that there was no complaint from any corner as regards the alleged occurrence and in the background of the the ill will and hatred the family of the victim girl would maintain in normal circumstances for having spoiled the family relationship, I am of the view that the evidence is not one that can be accepted as natural, trustworthy and reliable. It is seen that it is based on the evidence tendered by the victim girl as PW1 and the evidence tendered by the doctor who has first examined the victim girl as PW6, that the court below has found that the prosecution has proved beyond reasonable doubt the guilt of the accused. I am unable to agree with the findings rendered by Crl.Appeal No.520 of 2018 23 the court below. The evidence on record certainly raises serious doubts as to the genuineness of the case set out by the prosecution. Needless to say, the accused is entitled to be acquitted. 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** YKB