Sasikumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 16TH DAY OF JULY 2013/25TH ASHADHA, 1935** ## **CRL.A.No. 2818 of 2008 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 2534/2006 of SPL.JUDGE COURT FOR TRIAL OF SC/ST CASES(ADDITIONAL SESSION JUDGE), THIRUVANANTHAPURAM DATED 29-11-2008** **APPELLANT(S):** **------------------------** **SASIKUMAR, S/O.VASUDEVAN ATTOOR VEEDU, VILAVOORKONAM, PEROOR DESOM VELLALLOOR VILLAGE** **BY ADVS.SRI.M.T.SURESHKUMAR SRI.RAJA VIJAYARAGHAVAN** **RESPONDENT(S):** **----------------------------** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 2818 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of July, 2013 ## **J U D G M E N T** In this second round of litigation, the accused assails his conviction and sentence for the offences punishable under Sections 376 of the Indian Penal Code and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. He was convicted for the said offences and sentenced to suffer seven years rigorous imprisonment and a fine of Rs. 5,000/in default to undergo rigorous imprisonment for six months for the offence under Section 376 of IPC and he was also sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- with a default clause of six months rigorous imprisonment for the offence punishable under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. The substantive sentences were directed to run concurrently. Set off as per law was allowed. Crl.A. No. 2818 of 2008 **-2-** 2. PW1 is the victim in this case. PW2 is her father. According to the allegation, the victim was aged 13 years as on the date of incident as the date of birth is alleged to be 25.05.1980 and the incident is alleged to have taken place on 10.12.1993. 3. On the date of incident, the victim was returning from the school and on the way she happened to go to the vegetable shop run by the accused to buy some vegetables. As she was going home, it is claimed that she saw the accused coming on the cycle behind her. No sooner than she entered the house, the accused also is alleged to have got in. Thereafter, it is alleged that she was caught hold of and dragged to the nearby room and when she tried to raise her voice, her mouth was closed. She was made to lie on a mat on the floor and then she was ravished. It so happened that after committing the act, when the accused was going out, the father of PW1 had come home. He enquired what had transpired, PW1 narrated the incident to him. At the Crl.A. No. 2818 of 2008 **-3-** relevant time, her mother was not at home. She says that in the evening she along with her parents went to the Police Station and laid Ext.P1, First Information Statement. PW10 recorded Ext.P1, First Information Statement and registered crime as per Ext.P9, FIR. Investigation was taken over by PWs 11 and 12. The victim was examined by PW8, the doctor who issued Ext.P7 certificate. After the arrest of the accused, he was subjected to potency test and the Investigating Officer has without completing investigation laid charge before the court. Initially, it appears that the final report was laid before a Special Court which took cognizance directly and the accused was tried for the offences alleged against him. He was found guilty and sentenced to go various terms of imprisonment. The accused carried the matter in appeal before this Court as Crl.A.No. 855 of 1999. This Court by judgment dated 01.06.2006 set aside the conviction and sentence on the ground that the Special Court could not have taken cognizance without a committal Crl.A. No. 2818 of 2008 **-4-** as laid down in the decision reported in **Gangula Ashok** v. **State of Andhara Pradesh** [2000 (2) SCC 504] and **Vidhyadharan** v. **State of Kerala** [2004 (1) SCC 215] and remanded the case for proceedings in accordance with law. 4. The case records were therefore presented before the JFCM-II, Attingal which committed the case to the Special Court, Thiruvananthapuram. To the charge framed, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 13 and had Exts. P1 to P18 marked. After the close of the 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. He further stated that he has been falsely implicated with ulterior motive. According to him, the parents of the victim had borrowed vegetables on credit for ` 450/- from him and when he asked for the amount, there was some altercation between the two, as a result of which Crl.A. No. 2818 of 2008 **-5-** he has been falsely implicated. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to examine DWs 1 and 2 and had Exts. D1 and D2 marked. On an appreciation of the evidence in this case, the court below found the accused guilty of the offences alleged against him and the conviction and sentence as mentioned earlier followed. The said conviction and sentence are assailed in this appeal. 5. The learned counsel appearing for the appellant contended that a second trial was not possible in view of Section 300 of the Cr.P.C. and that amounts to double jeopardy and the entire proceedings are vitiated. For the said proposition, the learned counsel relied on the decision reported in **Abhinash Chandra Bose** v. **Bimal Krishna Sen and Another** [AIR 1963 SC 316] and also in the decision reported in **State of M.P.** v. **Bhooraji and Others** [2001 (7) SCC 679] and **Rattiram** v. **State of Madhya Pradesh** [2000 (2) KLT 498]. Accordingly it is contended Crl.A. No. 2818 of 2008 **-6-** that conviction and sentence cannot stand. It was then contended that the prosecution has miserably failed to establish the age of the victim and that should prove fatal. The learned counsel went on to point out that Ext.P3 marked through PW3, the Head Master of the school where the victim is alleged to have been studied last is insufficient to prove the age of the victim. That is only a certificate issued by the said witness which has no evidentiary or probative value. It is significant to notice according to the learned counsel that it is not the extract from the school register that is produced, nor was the school register produced before the court to verify the entries therein. It is accordingly contended that the age of the victim has not been established and on that ground also, conviction and sentence cannot stand. Finally, it is contended that Ext.P18 which is the FSL report shows negative results and therefore there is nothing to connect the accused with the offence. The learned counsel appearing for the appellant also drew ## Crl.A. No. 2818 of 2008 **-7-** attention of this Court to the contradictions and inconsistencies between the evidence of PW1 and the statements in Ext.P1 and contended that PW1 cannot be treated as a wholly reliable witness. 6. The learned Public Prosecutor on the other hand contended that the court below has considered the evidence in considerable detail and has come to the conclusion that the evidence adduced is sufficient to come to the conclusion that offences have been made out. PW1, according to the learned Public Prosecutor, gives a graphic description of what had transpired and there is nothing to doubt her version. She gets sufficient support from PW2 also. The learned Public Prosecutor pointed out that if any corroboration is needed, that is provided by the evidence of PW8, the doctor who had examined the victim and who had issued Ext.P7 certificate. 7. The learned Public Prosecutor pointed out that the contention based on Section 300 of the Cr.P.C. is without Crl.A. No. 2818 of 2008 **-8-** any foundation and has no merits. That applies only to cases where there is a trial which has ended either in acquittal or a conviction and not in the case where the matter is remanded for fresh trial. The learned Public Prosecutor also brought to the notice of the court that it was in an appeal filed by the accused that the conviction and sentence were set aside and having derived the benefit thereof, the accused now cannot turn around and say that the re-trial should not have been ordered. That contention therefore has necessarily to fail. According to the learned Public Prosecutor, Ext.P3, the birth certificate produced by the prosecution and proved through PW3 is sufficient in law to prove the age of the victim. Moreover, PW2, the father of the victim has also spoken to regarding the date of birth of the victim. In support of his contention, the learned Public Prosecutor relied on the decision reported in **Raju and Another** v. **State of Kerala** [2013 (1) KHC 718]. As regards the inconsistencies and contradictions pointed out Crl.A. No. 2818 of 2008 **-9-** by the learned counsel for the appellant, it was contended by the learned Public Prosecutor that such inconsistencies and contradictions are bound to arise in a case of present nature, but they have no significance when viewed in the light of the core issue involved in this case. As regards the actual incident, the version is consistent and the evidence of PW1 gets sufficient support at the hands of PW2 also, her own father. In short, the contention is that there is no merit in the appeal and is only to be dismissed. 8. As rightly pointed out by the learned Public Prosecutor, the contention based on Section 300 is without any justification. Section 300 of the Code reads as follows: _“300. Person once convicted or acquitted not be tried for same offence.--_ _(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made_ Crl.A. No. 2818 of 2008 **-10-** _against him might have been made under subsection (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof._ _(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under subsection (1) of section 220._ _(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such lastmentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted._ _(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged._ _(5) A person discharged under Section 258 shall not be tried again for the same offence except_ **-11-** ## Crl.A. No. 2818 of 2008 _with the consent of the Court by which he was discharged or of any other Court to which the firstmentioned Court is subordinate._ _(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.”_ 9. That Section is popularly known as “Autrefois Acquit and Autrefois Convict” or “double jeopardy”. That as rightly pointed out by the learned Public Prosecutor, has application only in cases where a full fledged trial is held and which ends either in an acquittal or a conviction. The section embodies the principles that no person shall be vexed twice for the same offence. As rightly pointed out by the learned Public Prosecutor, in the case on hand, the earlier appeal was allowed and the conviction and sentence was set aside and re-trial was ordered. 10. It is true that in the decision reported in **Abhinash Chandra Bose** v. **Bimal Krishna Sen and Another** [AIR 1963 SC 316], the order for re-trial had been deprecated. So ## Crl.A. No. 2818 of 2008 **-12-** also in the decision reported in **State of M.P.** v. **Bhooraji and Others** [2001 (7) SCC 679] and **Rattiram** v. **State of Madhya Pradesh** [2000 (2) KLT 498]. Those are all cases where the question was not one with regard to the jurisdiction but the Appellate Court exercising its appellate power ordered re-trial in those cases. In fact, in one of the cases, the issue arouse out of the offence under SC/ST Atrocities Act. The trial court had convicted the accused. The accused preferred an appeal and the High Court following the principles laid down by the Supreme Court, set aside the conviction and sentence and ordered re-trial. The matter was taken up by the State before the Apex Court. The Apex Court observing that the trial court which without committal had tried the case was justified in doing so because, at the relevant time, the law laid down by the High Court concerned was that the Special Court could take direct cognizance without the committal. Thus there was no reason as to why a conviction entered into by such a court Crl.A. No. 2818 of 2008 **-13-** should be set aside in appeal and the matter was remanded to the High Court to dispose of the appeal on merits. 11. The said principles can have no application in the facts of present case. First of all, it was the accused who was brought the matter in appeal and the law as far as this State is concerned at the relevant time was that without a committal, the Special Court cannot have jurisdiction to try the case. Under those circumstances, this Court was compelled to set aside the conviction and sentence and order re-trial. Thus the contention based on this contention has necessarily to be rejected. 12. Regarding the age factor, there is considerable force in the submission made by the learned counsel for the appellant. All that is produced is Ext.P3, a certificate said to have been issued by PW3 which shows the date of birth as 25.05.1980. In the decision reported in **Satpal Singh v. State of Haryana** [2010 (8) SCC 714] the decision relied on by the learned counsel for the appellant, the question ## Crl.A. No. 2818 of 2008 **-14-** regarding such a document was considered in detail and held that it may not be sufficient to prove the age of the victim. In the case on hand, apart from the evidence of PW3, the father of the victim has also stated that the age of the victim is as shown in Ext.P3. A Division Bench of this Court had occasion to consider an identical issue in the decision reported in **Raju and Another** v. **State of Kerala** [2013 (1) KHC 718]. After elaborately considering the issue at hand, this Court had occasion to hold as follows. _“23. According to the learned counsel the admission register from the school could have been produced to prove the age of the victim. But the testimony of PW9 would reveal that she had issued Ext.P6 certificate based on the entries in the school admission register. She further added that the entries in the admission register were carried down from the T.C. produced by the parents of PW1 at the time of admission. Evidently and admittedly too, PW9 is the headmistress of an upper primary school. It was after obtaining T.C. from a lower primary school that PW1 was admitted to the upper_ **-15-** ## Crl.A. No. 2818 of 2008 _primary school. The entries in the admission register of the upper primary school were made on the basis of the contents of the T.C. which was issued by the lower primary school in a statutory form. It was on the basis of the entries in the said admission register that PW9 has issued the certificate. We see no reason to discredit either the testimony of PW9 or Ext.P6 issued by her. PW9 by issuing Ext.P6 was performing an official act. Official acts are presumed to be done properly unless proved otherwise. We notice that there is absolutely no challenge regarding the genuineness of Ext. P6 in the cross examination of PW9.”_ 13. In the light of the decision rendered by a Division Bench of this Court, it cannot be held that the age of the victim is not established. Moreover, as earlier noticed, PW2 is the father of the victim has also stated about the age of the victim. There is nothing to show that there is any other document, for example, the entry in the birth register to establish the date of birth of the victim. Further, the court below has chosen to accept Ext.P3 for valid and convincing **-16-** ## Crl.A. No. 2818 of 2008 reasons. 14. As regards the contention based on Ext.P18 is concerned, true, it goes in favour of the accused but the FSL report shows nothing in favour of the prosecution. Merely because, blood, semen or spermatozoa are not detected on the clothes worn by the victim or the accused by itself is not a ground to reject the prosecution case if there is other acceptable evidence. Therefore, the contention that merely because Ext.P18 goes against the prosecution, the entire prosecution case has to be thrown out cannot be accepted. 15. It is here that the evidence of PWs 1 and 2 assume importance. PW1 is the victim herself. She has given a graphic description of what had transpired on the date of incident. She would say that the incident had occurred on 10.12.1993 in the afternoon. She at the relevant time was studying in the UP School at Ponganad. She would say that on the way back home, she had purchased vegetables from the shop of the accused who followed her to her house and Crl.A. No. 2818 of 2008 **-17-** thereafter when she entered her house, he too entered the house and then ravished her. She would at the time of evidence say that when she wriggled and cried out in pain, the accused stuffed clothes into her mouth. While the act was going on, she would say that it so happened that her father came home. Hearing the knocking at the door, she would say that the accused ran away from the place. On entering the house and noticing the flee of the accused, PW2 asked PW1 what had transpired and PW1 would say that she had narrated the entire incident to her father. She then says about having laid Ext.P1, First Information Statement before the Police on the same day. 16. PW2, the father of the victim says that on the date of incident also he came home for lunch. He found the door closed and the key missing from its usual place. The door on the northern side was also seen bolted. When he tried to enter the house through the eastern door, he saw the accused running away through that door. When he entered Crl.A. No. 2818 of 2008 **-18-** inside, he found his daughter crying. On enquiring about what had transpired, she said to have narrated the incident to him. 17. Of course, there are minor inconsistencies in the evidence of PW1 when compared with Ext.P1, First Information Statement. In Ext.P1 she has stated that she had occasion to see the accused following her on a bicycle whereas at the time of evidence she gives a go-bye to the said statement and she states that she happened to see the accused only when she was about to enter the house. She would also say in Ext.P1 that she had gone to the Police Station along with her parents but at the time of evidence she would say that she had gone with her father and father's sister and her mother had come to the Police Station later. There is also some inconsistency in her evidence regarding the person who was asked by her father to take care of her while her father had gone in search of his sister. Crl.A. No. 2818 of 2008 **-19-** 18. One should at once notice that the inconsistencies pointed out are of not much significance or relevance. They have nothing to do with the actual incident. Further, the age of the victim at the relevant time will also have to be taken note of. Her capacity of perception, retention and reproduction cannot be ignored. Again, the witness was deposing after several years of the incident and it is natural that some inconsistencies and contradictions will arise. There is nothing to show that PW1 had any ill motive to falsely implicate the accused. True, a suggestion is made to both PWs 1 and 2 regarding the amount due to the accused and a quarrel between PW2 and the accused regarding the same. But both of them denied those suggestions and there is nothing to show that such a claim is true. Further, it is virtually improbable and inconceivable to believe that a father would use his daughter in such a manner so as to wreak vengeance for the amount due from him to the accused. Especially, when such an act complained of brings **-20-** ## Crl.A. No. 2818 of 2008 only humiliation and cause stigma for ever on PW1. 19. A reading of the evidence of PW1 leaves one in no doubt that she was subjected to sexual intercourse and that she was ravished. Her evidence does contain a ring of truth. 20. As rightly pointed out by the learned Public Prosecutor, further evidence if any required is furnished by PW8, the doctor who had examined the victim and issued Ext.P7 certificate. His evidence shows that the injury noticed by him was a fresh injury and that prompted him to depose before the court that the victim had been subjected to sexual intercourse on the very same day itself. Even though the doctor was cross examined at length, his evidence could not be taken in this regard. 21. Yet another significant aspect is prompt lodging of the FIS. The incident is said to have taken place at 2.00 p.m., on the day and the FIS is seen lodged on the next day. But it is pointed out that it reached the court only on 13.12.1993. The mere fact that Ext.P1 reached the court Crl.A. No. 2818 of 2008 **-21-** only on 13[th] does not erode its evidentiary value. It is also pointed out by the learned counsel appearing for the appellant that there is a case for PWs 1 and 2 that they have filed a written complaint which is not seen produced. True, they say so. But merely because, they said so, it does not mean that Ext.P1 can be discarded on that ground. The Station House Officer who is examined as PW10 and the Investigating Officer denied having received any such written complaint. 22. A prompt lodging of FIS, the evidence given by PWs 1 and 2 supported by the medical evidence and the age of the victim having been proved through PW3 and Ext.P3, the court below was perfectly justified in coming to the conclusion that the act has been committed by the accused. 23. What then arises for consideration is that offence was committed by the accused. The court below has found that the accused has committed the offences both under Section 376 of IPC and Section 3(1)(xi) of SC/ST (Prevention Crl.A. No. 2818 of 2008 **-22-** of Atrocities) Act. The finding regarding the commission of act which attracts Section 376 is only to be confirmed. But that is not the position with regard to the finding as regards the offence under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. True, the victim belonged to a Scheduled Tribe. But that by itself is not sufficient. This Court had occasion to consider the issue in detail and has laid down the principle that unless the accused had knowledge about the caste and tribe of the victim or that act was committed with racial prejudice, the offence under Section 3(1) cannot be attracted. There is neither any material or evidence to that effect in the case on hand. Therefore, the finding of the court below that the accused had committed the act which would attract Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act cannot be sustained. The conviction and sentence for the offence under Section 3(1)(xi) is set aside and the accused is held not guilty of the offence under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. Crl.A. No. 2818 of 2008 **-23-** 24. What then remains to be considered is regarding the sentence for the offence under Section 376. One cannot forget that the victim was aged only 13 years at the relevant time. The court below has awarded only minimum sentence for the offence. If at all the court below has erred, it has erred on the side of leniency. No further indulgence needs to be shown with regard to the sentence also. The result is that this appeal is without merits and is liable to be dismissed. I do so confirming the conviction and sentence passed by the court below. **P.BHAVADASAN JUDGE** ds