Ratheesh v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 4[TH] DAY OF AUGUST 2022 / 13TH SRAVANA, 1944 CRL.A NO. 692 OF 2020** **AGAINST THE ORDER/JUDGMENTCP 13/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,ALATHUR** **SC 187/2015 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER SC/ST(POA)ACT1989, MANNARKKAD** ## **APPELLANT/ACCUSED:** RATHEESH, C.NO. 496/2018 AGED 38 YEARS S/O.CHANDRAN, C.NO.496/18, CNETRAL PRISON, KANNUR. BY ADVS. STATE BRIEF YEMUNA P VISHNUPRASAD NAIR ## **RESPONDENT/S:** STATE OF KERALA SMT.S.AMBIKA DEVI, SPECIAL GOVERNMENT PLEADER FOR ATROCITIES AGAINST WOMEN AND CHILDREN THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.692 of 2020 2 ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------------------------Crl.Appeal No.692 of 2020 -----------------------------------------------------Dated this the 4[th] of August, 2022** ## **JUDGMENT** ## **Vinod Chandran, J.** A very strange allegation of rape on a 60 year old, from the open, and witnessed by two minor children, who were accompanying the accused, is the case projected herein. The deceased was found to be a member of the Scheduled Caste, which resulted in the charge under the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, in addition to Section 324 & 376 r/w 34 of IPC. The accused found guilty of the offences, was convicted and sentenced with three years rigorous imprisonment (RI) under Section 324, 10 years and fine of Rs.1,000/- under Section 376(m) and imprisonment for life with a fine of Rs.1,000/- under Section 3 (2) (5) of the SC & ST (POA) Act. The prosecution examined 27 witnesses before court, marked Exts. P1 to P23 and produced MO1 to MO4 material objects. The defense examined one witness as DW1 and marked 5 contradictions as Exts.D1 to D5, and Ext. D6, a copy of the report of mental status of the accused dated 15.7.2015. 2. Sri. Vishnuprasad Nair, learned Counsel appearing for the appellant pointed out that the conviction has been entered into without any Crl.Appeal No.692 of 2020 3 evidence. The victim's testimony was recorded piece-meal by the trial court, seriously prejudicing the accused, since the testimony was improved every time the witness was put in the box. Even then, there were glaring contradictions marked as Exts.D1 & D2; from the FIS itself. There is also serious discrepancy in the location of the injuries caused and witnesses who saw the victim also were not consistent in their testimonies. The identifying features spoken by the victim could fit any person and despite there being no prior acquaintance, there was no TIP conducted. The victim categorically spoke of having seen the accused after the incident, only in court and such identification cannot at all be believed or acted upon. The Section 164 statement was taken in the presence of the police and PW26, the I.O, specifically spoke of having taken the victim to the Magistrate. It is also argued that the investigation was carried out by an Inspector while the SC & ST (POA) Act mandates such investigation to be carried out by an officer not below the rank of a Dy. S.P. The provisions of the SC & ST (POA) Act are not at all applicable since there is nothing to prove that the accused had knowledge of the caste of the victim. The trial court, giving a go-by to the fundamentals of criminal jurisprudence, relied on the statements made by the accused under Section 313, wherein the accused said that he was acquainted with the victim. The Kerala Chemico Legal Examination Rules, 1959, is also relied on to argue that there is no clarity as to the tests carried on at the F.S.L Crl.Appeal No.692 of 2020 4 which is mandatory under Rule 3A. The learned counsel relies on _**AIR 2021 SC 2190 Pathan Jamal Vally vs, State of Andhra Pradesh**_ to assail the conviction under SC & ST (POA) Act. 3. Smt. Ambikadevi S., learned Special Government Pleader [Atrocities against Women and Children and Welfare of Women and Children], argues for sustaining the conviction and sentence. It is emphasized that the victim is an illiterate woman aged 60 years and coming from the marginalized section of society, who cannot be faulted for having left out some details in the testimony before court. It is pointed out that the persons who came to the locality later, fully corroborated the testimony of the victim. The assailant and the two boys who witnessed the incident were arraigned as accused. The boys being minors could not be tried before the Sessions Court. It is pointed out that the accused showed symptoms of epilepsy during the trial and it was hence, the examination was carried out piece-meal. The learned Special Government Pleader would argue for confirmation of the conviction of the offences charged, both under the IPC and SC & ST (POA) Act. 4. The FIS was by PW1, the victim, marked as Ext.P1. According to the victim, she had gone to the forest area to graze her goats. Within the forest, there is a small shed made of plastic, to shelter the goats from the rain. When it started raining by around 4 p.m., she came to the shed to see two Crl.Appeal No.692 of 2020 5 boys aged around 16 and one young man aged 35 years sitting in the shed. On being queried, they said that they had come to see the forest and had sheltered themselves from the rain. The first informant then proceeded to call her grandmother, when the young man came near her and asked her where she is going. When she said that she was going to call her grandmother, he lifted her bodily and took her to the shrubs nearby and attempted to rape her. When she tried to wriggle out, he said that he was celebrating his honeymoon and attempted to put his genitals into her mouth. When she resisted, he hit her with a stone on the left ear and left breast. He also bit her on the breast and pulled on her genitals, with his fingers. Though she tried to escape, the young man held her fast and the boys witnessed the entire episode. Then, the boys spoke up and the young man immediately left her and ran away and so did the boys. She chased them shouting loudly and hearing her shouts, one Shukkur (PW23) came from the nearby quarry. Shukkur summoned the other locals and she complained of pain on the left side of her head, right hand and all over her body. Her relatives took her to the hospital and she spoke of her assailant being a fair, lean, young man, sporting a beard. She also asserted that she can identify the said assailant and also the boys, if they are shown to her. 5. The victim was examined as PW1 first on 8.2.2017. She spoke of her avocation, her family circumstances and that she spends her time, from Crl.Appeal No.692 of 2020 6 10.30 to 6, in grazing goats. She spoke of having moved to the shed when rain commenced and having seen three persons sitting inside the shed. Her deposition was that, when she moved away to call her grandmother, the accused was standing with his gaze fixed on her and later the accused pulled her into the shrubs and attempted to rape her. On this was marked Ext.D1 which read as; when she told the accused that she was going to call her grandmother, the accused bodily lifted her, threw her into the shrubs and attempted to rape her. Her testimony continued that, he ordered her to lie down and poked her on the arms and head. He also turned her arms to the back and hit her with a stone on the head. When the rain stopped, the assailant left and she remained in the spot crying, when PW23 came to her. All of those were omissions in the FIS. PW23 then gathered the locals and she was taken to the Alathur Hospital. She marked Ext.P1 and soon after chief examination, she was cross examined, wherein she categorically stated that she had no acquaintance with the assailant. Ext.D2 contradiction, from the FIS was that the assailant left, when the boys said something; which she did not testify to. It was also her statement in cross examination that she sustained injuries, from the stones, when herself and the assailant were rolling in the shrubs. She denied that she had told the doctor that three persons had together raped her. She repeated that at the time of the incident it was dark, and when PW23 came, she was sitting on the ground and she Crl.Appeal No.692 of 2020 7 never ran screaming. She denied such a statement having been made before the police and asserted that she saw the accused for the first time in court and also alleged that the accused was mad. In re-examination, it was elicited that she had seen the accused in the Alathur police station and in cross, contrary to her earlier statement she said, the policemen showed her the accused. After the witness was subjected to recross, it is seen that she was recalled and sworn in on the very same day, to identify MO1 stone, which she admitted she picked up from the forest in the presence of the police and also stated that there were many similar stones at the crime scene. MO1 was also admitted to have been picked up, 15 days after the crime. 6. The witness was discharged and later again summoned on 20.07.2017, to speak about the Section 164 statement she had given before the Magistrate. We see no application having been filed by the prosecution or an order passed by the trial court, other than a cryptic: _'issue summons to PW1, CW2 & 29 t0 32'_ , from the Proceedings Sheet, on 09.03.2017. PW1 marked Ext. P9, S.164 statement as Ext.P9 and also identified the full sleeve shirt (MO2), green blouse (MO3) and the yellow under-skirt (MO4) which were voluntarily surrendered by her before the police. In cross examination, she stated that the summons was brought to her, by the police and that she went along with her daughter in law to the court. She admitted that before going to court, the policemen had taken her statement. She denied having Crl.Appeal No.692 of 2020 8 testified falsely and admitted that MO2 to 4 were surrendered after one week. Again PW1 was recalled and sworn in on 27.10.2017. We see an application filed by the prosecution that the testimony regarding the incident has not been recorded and the learned judge allowed the petition, for the reasons stated in the application; we cannot but remark, quite preposterous. This however is not the reason stated in the impugned judgment. We will deal with the issue more elaborately when we refer to the impugned judgment. 7. In chief-examination on the third recall, PW1 was put a specific question about having testified at the first instance that the accused took her to the shrubs, attempted to rape her, asked her to lie down, and when the rain ceased, he left. There was no answer recorded. There was a further question put as to whether the accused did something to her between this time. Then the witness testified that the accused abused her and told her that he has not spared even his mother and sister and that she would not be left free; all gross embellishments. She also alleged that he pursed her lips and attempted to put his genitals into her mouth, which was thwarted by herself moving away. Then the accused hit her on the head with a stone, the scar of which was displayed in court. There was no wound on the head referred to in the FIS or the earlier testimony. PW1 continued that, she was asked to lie down again and she tried to escape and kept her arms crossed on her breasts. The accused pulled her arms apart and bit on both her breasts and mauled her Crl.Appeal No.692 of 2020 9 genitals; again, neither stated earlier nor in the FIS. When the rain ceased, there was light and she got an inner strength which prompted her to scream out loud, when the accused left her; quite contrary to her earlier statements and the testimony at the first instance. The victim was cross examined and the allegation was that the court had not written down the entire evidence at the first instance. Omissions from the prior and present narration were specifically confronted to the witness and the significant ones are with respect to : (i) the assailant having pulled both her arms behind, (ii) the assailant having pursed her lips and attempted to put his penis into her mouth, which having slipped away on her moving away, (iii) the victim having crossed her arms over her breasts and the assailant having pulled them aside to bite her breasts, (iv) the assailant having mauled her genitals, (v) the accused having run away, when she sat on the ground and screamed. The discrepancy also was about what exactly the accused spoke to the victim, in the course of the aggression; which version was quite different from the FIS and also the earlier testimony. The earlier testimony on that aspect was also different from that in the FIS. 8. We do not find any valid reason for having repeatedly summoned the witness or an order having been made on that count under Section 311 of the Cr.P.C. at the second instance. There is not even a formal order made, that the recall of the witness was essential for the just decision of the case; at Crl.Appeal No.692 of 2020 10 least to mechanically comply with the provision. At the first instance when PW1 was recalled, on the same day, ie: on 08.02.2017, it was for reason of MO1 stone having been not marked; quite permissible. Later she was again recalled for reason of the omission to produce and mark the S.164 statement and the dress surrendered by the victim to the police, without a written or oral application or a brief statement of the reason as to why the court thought it fit to recall the witness. In any event even the recall at the second instance can be justified. For the third time ,the witness was recalled in an application filed by the prosecution, which according to the judgment in appeal, states the reason of the full particulars of the incident having not been brought out. In fact, we already noted the specific ground in the application made, which was that the earlier testimony was not recorded; which is an allegation against the Court. The application filed on 16.10.2017, is not seen acknowledged as received by the accused or his counsel; but in the order the absence of an objection is recorded. We verified the original deposition of PW1 and see different hand-writings in the testimony, recorded on the first two days and the last day; obviously by two different Judicial Officers. 9. The learned Sessions Judge completely lost sight of the procedure to be followed after completion of evidence, as provided under S.278 Cr.P.C and glossed over the same, causing serious prejudice to the accused. Sub-Section (1) provides that, after the evidence is completed under Crl.Appeal No.692 of 2020 11 S.275 or S.276, it shall be read over to the witness in the presence of the accused, if he is in attendance, or of his pleader, and necessary corrections also can be made. If the witness denies the correctness of any part of the evidence, as per sub-section (2), the presiding Judge, instead of correcting the evidence, can make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. This would ensure that any subsequent Officer taking charge and the Appellate Court would be appraised of the demeanor of the witness, the circumstances in which the testimony was again recorded and so on. The procedure in terms of S.278 should have been adhered to by the Sessions Judge who recorded the evidence. When a plea is made before Court that evidence was not recorded properly or statements made in the box were not recorded and as in the instant case, there is a specific allegation that the evidence was not read over; first the evidence should be read over to the witness. Then a memorandum ought to have been prepared for recording the deposition and suitable remarks, if necessary, had to be made, as the learned Judge thinks fit. None of this procedure was followed in the above case. Be that as it may, we find that here, there is an attempt to fill up the lacuna in the evidence, especially since there is a clear description of the incident in the first testimony itself. As we noticed, finding that the material objects were not marked and again for reason of the S.164 statement not being placed on record, the witness was Crl.Appeal No.692 of 2020 12 recalled twice under S.311. Then on the third occasion the description was considerably embellished by the prosecutrix, in which testimony there were glaring disparities from the first testimony. We find no reason to rely on or accept the subsequent testimony, which departs considerably from the earlier testimony. 10. We have also looked at the order sheet, which shows that, on many days the accused was not produced because he had an epileptic condition. There were also instances when the accused had seizures in court and behaved abnormally, and he was given medical care. Then on many occasions, the accused was not produced for reason of escort not being available. But there is not even one instance when the examination of a witness was adjourned for reason of the seizure of the accused, in court; as contended by the Special G.P. PW1 was re-examined on 20.03.2017, when the accused was not present since he was not produced. On 16.10.2017, when the learned Public Prosecutor filed an application to recall PW1, again the accused was not produced. PW1 was examined for the third time on 27.10.2017, when cursory remarks were recorded by the learned judge, as seen from the proceedings sheet that, ' _Since identity is not disputed PW1 is examined further in the absence of accused with the consent of the defense counsel';_ we have to notice, a State Brief. We cannot but deprecate the said practice of summoning witnesses repeatedly without reasonable cause and Crl.Appeal No.692 of 2020 13 without an order under Section 311, indicating that the witness be reexamined for the purpose of securing the ends of justice _Teena v. State of Kerala_ ( _2022 (2) KLT 593)_ . 11. _Mannan Shaikh v. State of West Bengal [(2014) 13 SCC 59]_ examined the manner of exercise of power under Section 311, 243 (2) & 246(5) for recall and further recall of witness. 'Essential to just decision of case' conferred wide powers on Court which had to be exercised with circumspection, only for that objective, was the finding. It was cautioned that the power should not be exercised in a manner prejudicing the accused or enabling the prosecution to fill up a lacuna and that, whether it be for the one or the other; ie; for a just decision or to fill up a lacuna, would depend on the facts and circumstances of each case. In that case one of the witnesses, the Investigating Officer had deposed that he had recorded the statement of the deceased before his death but inadvertently the said dying declaration was not brought on record for which purpose he was recalled, that too hardly a month after the first examination; which was held to be well within the power under Section 311. 12. As we noticed from the deposition of PW1, there are umpteen contradictions and omissions and the testimony has been embellished and improved at every stage. There is no clear testimony as to the incident and there are prevaricating statements made, which give rise to a very reasonable Crl.Appeal No.692 of 2020 14 doubt in our minds about the reliability and credibility of the victim/ prosecutrix. We are also of the opinion that the learned trial Judge ought to have exercised more caution as also employed circumspection in allowing the claim under S.311 of the Cr.P.C. to recall the witness, who is the prosecutrix, after 7 months from the first examination on the grounds stated. 13. Before we go through the other evidence, it has to be noticed in passing that PW1 does not make any allegation against the two minor children, who were in the shed, along with the accused, and we fail to understand why they were not made witnesses in the case. Be that as it may, we look at the testimony of the witnesses proffered in the case. PW2 is the husband of the victim who confirmed that his wife had gone for grazing goats and that he had carried her lunch, in the afternoon and returned. He spoke of his wife having narrated the incident to him and also deposed that she had an injury on the left arm and two wounds on her breasts. He categorically stated that she had no other injury; which makes the injury on the forehead very doubtful. PW23, is Shukkur, who first reached the victim after the incident. We already noticed the discrepancy in the testimony of PW1 from the FIS as to how Shukkur came to the scene. It is Shukkur's evidence that he was engaged in fish farming in a deserted quarry and he used to be present there, morning and night on every day. He was acquainted with PW1 and her husband, and spoke of the former coming to the forest regularly to graze Crl.Appeal No.692 of 2020 15 goats. On 20.6.2014, he was near the quarry when he heard the scream of a lady at around 4 p.m. When they looked in the direction they saw one lady crying and running towards them. PW3 and his companion ran towards her and they recognized PW1, whose dress was torn. PW3 gave her his working dress and asked her as to what transpired. He was told that she was brutally raped and hit on the head with a stone. She also spoke of the presence of three persons, of which one of them was the assailant and the others, spectators. The person who attacked was around 35 years and the two others were minor children. According to Shukkur, he immediately entrusted PW1 to his companion and went in search of the assailant. The assailants having fled from the area, he took his bike and went in search of them. Later, when the police came with PW1 to the scene of crime; after 15 days he was present and PW1 pointed out a stone to the IO. In cross examination, he admitted that his companion who was with the victim in the quarry, was one Mani alias Vellamani; who was not examined before Court. 14. PW3 asserted that PW1 ran to his shed, and seeing her, himself and his companion ran to her and reached her, about 50 meters from his shed. He also deposed that he had not seen PW1 at the scene of crime, quite contrary to PW1's version. He denied that he had taken PW1 to Muthanthod junction contrary to which, he had made a statement to the police. He also prevaricated as to how the two children were apprehended. He deposed that Crl.Appeal No.692 of 2020 16 he went in search of them in a bike and caught hold of the two children; but did not speak about such act to the police. According to him, he caught hold of them and brought them to the junction, from the where the police took them. He admitted his statement to the police, that he saw the children moving downhill and that it was after that PW1 came running to him, while in his testimony he denied having seen the accused. In the prior statement, he spoke of having seen Ratheesh, the accused and Manikandan and Ramesh (the two minor children) having been caught by the police. When the said statement was confronted to him, he explained that he brought the children to the junction and put them before the people gathered. Also according to him, he did not entrust the children to the police and the police took them from the junction. We find it very difficult to believe the testimony of PW23 also. 15. PW3 is a loading worker, who saw PW1 on the same day in a desperate condition. He also spoke of PW1 having been brought to her house in a jeep and then taken to the hospital at Alathur in an auto-rickshaw, not supported by the other witnesses who spoke of her being taken directly to the hospital. He spoke of two children having been in the premises, of whom, one was alleged to have assaulted PW1. According to him, Shukkur had personally come and told him about the incident, while the testimony of PW23 is that he telephoned somebody and then went in search of the assailants in his bike. Crl.Appeal No.692 of 2020 17 Ext.D3 contradiction marked from PW3's prior statement is that Shukkur called him on the telephone, Ext.D4 contradiction again from his prior statement is that he saw Shukkur bringing PW1, holding her hands. PW4 is another loading employee who had heard about the incident and gone to the hospital and he spoke of a head injury on PW1. According to him, one Ratheesh was arrested and he went along with PW1 to the police station where she identified the accused. Pw5 ,the niece of PW1, also came to the crime scene with two other women, to see PW1 in a desperate condition with a bleeding injury on the head. They were told that one person raped her while two children witnessed it. 16. PW6 was the doctor who examined PW1. He noted that the patient was calm, pubic-area normal, vulva intact, swelling on left side of jaw, unable to move right arm, aberration on both breasts. Ext.P2 wound certificate was marked; which or the doctor's testimony, did not show any injury on the head. It was categorically stated the there is no evidence of recent vaginal penetration. In cross examination, it was confirmed that the patient gave no hints of assault on the pubic region. PW7 is another doctor working at the Taluk Hospital, who issued Ext.P3. Ext.P3 shows tenderness of left angle of mandible, right elbow, right shoulder and contusion left shoulder; again no injury on the head. The history as spoken of by PW1 recorded by the doctor in Ext.P3 was deposed to be. ' _three persons known by_ Crl.Appeal No.692 of 2020 18 _sight having attempted to rape and assault her with a stone on the face and hands'_ . According to PW7, she could not see any external injuries on PW1. PW8 examined the accused for potency and by Ext.P4, certified that there is nothing indicating his inability to perform the sexual act. PW9, a gynecologist also examined Pw1. Ext.P5 issued by him indicate : (1) swelling over the left jaw (2) bruise and red mark on the breasts and (3) mild pallor present. He deposed that there was an arm brace over the right arm, pelvisabdominal examination detected no abnormality and no external injury over the genital area. The witness also deposed that the alleged history of rape was, attack by three members who tried to sexually assault her and in the ensuing scuffle, suffered a blow over her face and right arm. It was also deposed that there was no evidence of rape. The medical evidence neither indicate rape nor the bleeding injury on the head, spoken of by PW1 at the third instance of her examination. Some other witnesses also spoke of it, but not noticed by any of the doctors. We already noticed that even PW2, the husband, did not speak of a head injury. The medical evidence does not support the prosecution case and at best there were injuries caused, justifying the charge under Section 324, but nothing to indicate an offence under Section 376 . Even the testimony of PW1 speaks nothing of a penetration and the only sign is the bite marks on the breasts; which in isolation is a sexual assault, but not amounting to rape. Crl.Appeal No.692 of 2020 19 17. PW10 is the Village Officer who issued Caste Certificate, Ext.P6 of the accused, and PW11 issued Ext.P7, Caste Certificate of the victim. PW12 prepared the scene plan, PW13 and recorded Ext.P1 FIS. Ext.D2, the statement in FIS that the accused left when the two minor children spoke up and D1 that while she was going to call her grandmother she was tortured by the accused, were both proved. PW13 also stated that in the FIS there is a clear statement that PW1 screamed and ran away from the crime spot. PW14 recorded Section 164 statement. It was asserted that there was no statement made by the victim that she was tortured by the accused when she was going to call her grandmother. The witness also confirmed that there was no statement made, that the victim ran screaming. PW15 is the S.I. who registered Ext.P10 FIR. PW16 was the IO who prepared Ext.P11 scene mahazar and seized MO2 to 4 dress worn by PW1. The dress was seized by Ext.P12 mahazar dated 23.06.2014, three days after the incident. The I.O arrested the accused on 03.07.2014 , and by Ext.P13, filed report before the Magistrate. Ext.P14 is the report by which the two minor children were produced before the Juvenile Board. He also confirmed that the further investigation was carried out by the Dy.S.P. PW16 confirmed that PW3 had spoken of having seen Shukkur coming with PW1, holding her hands. PW5 had also made a statement that she saw PW1 near Mallapara Canal, in a bleeding state (D5). Crl.Appeal No.692 of 2020 20 18. PW17 was a witness to Ext.P11 scene mahazar. PW18 witnessed Ext.P12 mahazar by which MO2 to 4 were surrendered before the police by PW1. PW19 witnessed Ext.P18 mahazar, dated 04.07.2014, which speaks of the police having picked up a stone from the crime scene in the presence of PW1; 15 days from the date of the alleged crime. PW20 is the Assistant Director of Serology, who examined MO2 to 4. According to Ext.P19 report, human spermatozoa was detected on item no.3 (MO4.) seminal stains not detected on item no.1 an 2 (MO's 2 & 3) items 1 and 3 (MO's 2 & 4) contained blood which is insufficient for detecting the origin. PW21 is an auto driver who speaks of one Manikandan, a friend, having summoned him and when he reached Parakkatukavu, he saw three persons standing there. There was Manikandan, Kannan and another person, whom he was not familiar with, having about 30 years of age. The accused was not produced on the day and he was hence not identified. The witness also spoke of seeing a cover with his passengers, which, on enquiry, was admitted to be Beer. They got down near a toddy shop and asked him to come back when he is summoned, but they never called him back. PW21's evidence does not at all aid the prosecution especially for reason of no identification of the accused having been made. PW22 is an anganwadi helper who witnessed Ext.P12 mahazar by which the dress of PW1 was seized. PW24 is the auto driver who took PW1 from Muthanthode to the Taluk Hospital at Alathur, who confirmed that PW1 was Crl.Appeal No.692 of 2020 21 bleeding at that time. According to him, Sivaraman and Vasu accompanied PW1; both of whom have not been examined before court. 19. PW25 is the Dy.S.P. who reported and incorporated the charge of the offence under the SC & SC (POA) Act, marked as Ext.P20 and filed final report. There was a suggestion made in cross examination that the accused was mentally unfit to face the trial, which was denied. PW26 is the ASP who seized the stone as per Ext.P18. It was also his testimony that he produced the victim before the Magistrate for recording 164 statement. In cross examination, the following prior statements of PW1 were proved. (i) after some time, the minor children who had witnessed the incident said something when Ratheesh left her and ran into the forest (ii) she screamed and ran towards the quarry wherein Shukkur carries on fish farming and hearing her cries, Shukkur came running, (iii) that the accused shouted at her to lie down, abused her and said that he has not spared his mother and sister and he does not intend to spare her. PW27 is another ASP who obtained Ext.P5 certificate of examination of the victim and also the potency certificate of the accused. He also produced FSL report which was incorporated in the CD. DW1 was examined by the defense to prove the mental capacity of the accused. However, the entire attempt fell through, with the witness asserting that the accused had no mental illness and she had certified that he is capable of facing trial. According to her, the accused was an epileptic patient, the Crl.Appeal No.692 of 2020 22 seizures from which are transient in nature and results in _'postictal confusion'_ and does not hamper his mental capabilities. 20. The entire evidence led by the prosecution is full of inconsistencies. PW1, the victim, does not have a consistent case of what transpired and her testimony is full of prevarications and embellishments which raises serious doubts about the incident complained of. The victim also had different versions of the words spoken by the accused. The medical evidence does not tally with the testimony and there is no evidence of rape. The different versions of how the assault on the victim was perpetrated, does not tally with the medical evidence of her injuries. The bleeding injury was not noticed by the expert witnesses and even her own husband failed to notice the injury on the head. The scientific evidence though speaks of the presence of spermatozoa on the dress of the victim, we cannot place any reliance on it. The dress was not immediately seized despite the victim having been taken straight to the hospital. The dress was surrendered after three days as is indicated from Ext.P12 from the house of the victim. Again, there is no statement of an ejaculation by the accused. 21. We have gone through the judgment of the Trial Court and we find ourselves unable to accept the reasoning in the said judgment. First of all we find that the the repeated examination of the prosecutrix, PW1, has prejudiced the defense irreparably. We have noticed how the repeated Crl.Appeal No.692 of 2020 23 summons were issued to PW1; without just cause and without a reasoned order. We are unable to concede to the ground raised in the application dated 16.10.2017 that at the earlier point, what was stated by the witness was not recorded. In fact the earlier testimonies of the witness, specifically indicate the details of the incident, which have been considerably changed in the subsequent testimony. The learned trial judge has taken out the essence of the details from the three testimonies, which is not permissible. At each stage, the manner in which the aggression was carried out and the words uttered by the accused were differently stated. The contradictions were found to be minor which we cannot agree with. The details of how the incident commenced, proceeded and later culminated are substantially different, in the first and the last of the testimonies and they vary from the FIS and prior statements. We are unable to accept PW1 as a truthful witness, as has been done by the trial court. We have also noticed that though invocation of Section 311 is spoken of in the impugned judgment, we do not see any such order under Section 311 having been issued when summons was issued the second time to PW1. On the third time, when an application was filed, on the ground that earlier the relevant aspects were not recorded by the court; the trial court allowed it mechanically. We have already noticed the further embellishments made, when the prosecutrix was examined for the third time on 27.10.2017, almost seven months after the second examination. In the Crl.Appeal No.692 of 2020 24 impugned judgment the trial court justifies its action on the ground that there was a change in Prosecutor, which by itself is not a valid ground, since then every time the Prosecutor changes, the witnesses could be reexamined and made to testify as the incumbent Prosecutor desires; which makes the testimony tutored. The ground in the application, as noticed in the judgment, is also that the full particulars have not been brought out; which is contrary to that pleaded in the application, of the full aspects having not been recorded. We also see a reference to _**State of Karnataka v. Shivana alias Tarkari Sivan [(2014) 8 SCC 913)**_ ] to find that Section 164 statement by the victim before a Judicial Magistrate is to be treated as an examination in chief. We find no such proposition emanating from the aforesaid decision and the declarations are only with respect to the expediency with which a Section 164 statement is recorded, of a rape victim, especially looking at Section 164A of the Cr.P.C. inserted by Act 25 of 2005. As far as treating the said statement as chief-examination, the Hon'ble Judges merely expressed their opinion, especially noticing that despite establishment of fast track courts for trial of rape cases, there is no fast tracking of the procedure. Then, the Hon'ble Court, quiet realizing the fact that this would require amendment of the Cr.P.C did not include the same in the directions issued, exercising the powers under the Constitution. The trial judge has grossly misread the decision. Crl.Appeal No.692 of 2020 25 22. The Trial Court while finding that in a rape case, there can be no corroboration expected, however found sufficient support from the evidence of PW23. The trite position is that when the evidence of the prosecutrix is reliable, trustworthy and inspires confidence in the Court, there is no requirement for corroboration; which we find difficult to apply in the present case. The testimony of PW1 is shaky and the evidence of PW23 who saw the victim immediately after the alleged incident, also does not fully support her testimony. Contrary to the FIS, the testimony of PW1 was that, after the incident, she sat on the ground, in the scene of crime itself, to which spot, PW23 came, on hearing her cries. PW23 however says that he heard a woman screaming and saw PW1 running towards the shed in which he was sitting. He ran to the side of the woman and consoled her, as also elicited what transpired. Again, while PW1 says that it was when the minor children spoke something that the aggressor left her, the evidence of PW23 is that he saw the minor children climbing downhill before he heard the scream of PW1. He also had an inconsistent statement that he saw the accused and the minor children. We find no support from PW23's testimony, to the case of the prosecution. The next aspect found by the trial court is the identity of the accused which speaks of a detailed account of the physical features of the accused, tallying with the physical appearance of the accused. We find absolutely no detailed account of the physical features having been given by Crl.Appeal No.692 of 2020 26 the victim to the police. As pointed out by the learned Counsel for the appellant, she only spoke of a fair, lean, young man with a beard; which could apply to anybody of that description. As to the identification on the dock, there are serious doubts since PW1 first deposed that she saw the accused for the first time in the dock, after the incident. Later it was deposed that the police showed the accused to her in the police station. PW4 also said that he accompanied the victim to the police station when they were shown the accused. PW1 had absolutely no prior acquaintance with the accused and in that context, it was only proper that a TIP was conducted. We do not agree with the trial court that the failure to conduct a TIP is proper and we hold otherwise. We also do not find any support from the scientific evidence of presence of spermatozoa on the under-skirt of the victim, which has been elaborately dealt with, in the previous paragraphs. We only agree with the trial court's finding, rejecting the 'epileptic insanity' pleaded by the defense; the existence of such an ailment itself being rubbished by the expert examined on the side of the defence. The mental insanity thus pleaded was not even supported by the doctor. But apart from that, we find absolutely no way to find a rape having been committed or at least an aggression leading to the charge of Section 324, especially when the identification itself is on a doubtful premise and the medical evidence speaks of no rape having been carried out. 23. When the charges under the IPC are not proved definitely Crl.Appeal No.692 of 2020 27 there cannot be a charge found under the SC & ST (POA) Act; which also is based on the alleged sexual assault. However we have to notice two aspects, one argued by the appellant and the other discernible from the trial court judgment. The learned Counsel for the appellant argued that the investigation was by a C.I and the S.C & S.T (POA) Act mandates the investigation to be conducted by an officer not below the rank of a Dy.S.P, as mandated by Rule 7 of the S.C & S.T (POA) Rules, 1995. Here the investigation was carried out by a C.I. The case was first registered under the provisions of the IPC and investigation was carried out by the C.I, PW15 and only later by Ext. P7 certificate of caste, the caste status of the victim was disclosed. In fact, there was no allegation in the FIS or the testimony that the alleged offence was carried out by the accused, with the knowledge of the caste status of the victim. PW25, a Dy.S.P filed the report incorporating the charge under S.C & S.T (POA) Act and filed final report. Even before that both PW26 & PW27, both A.S.P's took over the investigation. Further we also refer to the decision of the Hon'ble Supreme Court in , _H.N. Rishbud v. State of Delhi AIR [1955 SC 196]_ which held that invalidity of investigation has no bearing on the competence of the Court. But, the trial Court has entered conviction under the S.C & S.T (POA) Act relying on Section 8 of that Act and finding knowledge on the accused from his Section 313 questioning. The victim does not have a case of prior acquaintance and her testimony was also that she first saw the Crl.Appeal No.692 of 2020 28 accused at the time of the alleged incident and then in Court, at the time of trial. True, she later changed her version that the accused were shown to her by the Police; but her statement that she had no prior acquaintance remained as such. The reliance placed on the response made in Section 313 questioning is grossly improper. 24. _Ashok Kumar v. State of Haryana [(2010) 12 SCC 350]_ considered the effect of the statement of the accused made under S.313 Cr.P.C. It was held, there is a dual purpose intended under S.313; firstly to put to the accused every material piece of evidence against him and secondly to give him a fair chance to give his explanation in relation to the incriminating circumstances. The Court is empowered to examine the accused under S.313, only after the prosecution evidence has been completed and the option lies on the accused to maintain silence by a simplicitor denial or to put forth his version or reasons for his alleged involvement in the commission of crime. This statement is made by the accused without fear, on which no right of cross examination is conferred on the prosecution. It was declared that if the statements made are false, the Court is entitled to draw an adverse inference and pass consequential orders in accordance with law. As to the consequences of such statements and the extent to which it can be used, the Court said so in paragraphs 32 & 33: _“32. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused._ Crl.Appeal No.692 of 2020 29 _It can be taken into consideration in any, enquiry or trial but still it is not strictly an evidence in the case. The provisions of Section 313 (4) of the Cr.PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in as evidence for or against the accused in any other enquiry or trial for any other offence for which, such answers may tend to show he has committed. In other words, the use of a statement under Section 313 of Cr.PC as an evidence is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution._ _33. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Cr.PC as it cannot be regarded as a substantive piece of evidence. In the case of Vijendrajit Ayodhya Prasad Goel v. State of Bombay [AIR 1953 SC 247], the Court held as under :_ _"3...........As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under Section 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused's statement and excluded the exculpatory part does not seem to be correct. The statement under Section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown."_ Crl.Appeal No.692 of 2020 30 ## 24. _Ashok Debbarma v. State of Tripura [(2014) 4 SCC 747]_ after ## examining a host of decisions held : _"In this connection, reference may also be made to the judgment of this Court in Devender Kumar Singla v. Baldev Krishan Singla(2004) 9 SCC 15 and Bishnu Prasad Sinha and another v. State of Assam(2007) 11 SCC 467. The above-mentioned decisions would indicate that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution."_ Hence the statements made under S.313 are not substantive evidence and the same can be used against the accused, only if there is other evidence to find him guilty. The statement under S.313 cannot be considered in isolation and can only be considered in conjunction with the evidence adduced by the prosecution. 26. The charge under SC & ST (POA) Act would not lie since the victim asserts no prior acquaintance, there is no evidence led on that count and the accused is not identified as a local, by the numerous witnesses from the locality paraded before Court. We find that the learned Sessions Judge has grossly misguided himself and we find the appreciation of evidence as also the understanding of precedents referred, to be lacking and we find no way to uphold the impugned judgment. 27. Having gone through the evidence led by the prosecution and having heard the learned counsel appearing for the appellant and the learned Crl.Appeal No.692 of 2020 31 Special Government Pleader, we are of the opinion that the prosecution has not proved beyond reasonable doubt, the charges leveled against the accused. We hence acquit the accused and direct him to be released forthwith, if he is not required in any other case. The appeal is allowed. Sd/- **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** uu