State of Kerala represented by Public Prosecutor v. Biju @ Ernakulam Biju

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA** **WEDNESDAY, THE 5[TH] DAY OF JUNE 2024 / 15TH JYAISHTA, 1946 CRL.A NO. 1091 OF 2018** **AGAINST THE JUDGMENT DATED 15.02.2017 IN SC NO.1396 OF 2006 OF THE ADDITIONAL SESSIONS COURT FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN,THIRUVANANTHAPURAM APPELLANT/ACCUSED:** **BIJU @ ERNAKULAM BIJU AGED 36 YEARS S/O. RABI, RESIDING AT THANNIPPARA THALAKKAL POUTHEN VEEDU, CHAKKIPPARA, PUNALAL MURI, VELLANADU VILLAGE, NEDUMANGAD TALUK OF THIRUVANANTHAPURAM DISTRICT, PIN-695542.** **BY ADVS. SRI.M.P.MADHAVANKUTTY KUM. K. REMIYA RAMACHANDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN- 682031.** **SMT.AMBIKA DEVI, SPECIAL PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2024, THE COURT ON 05.06.2024, DELIVERED THE FOLLOWING:** Crl.Appeal No.1091 of 2018 -: 2 :- ## P.B.SURESH KUMAR & M.B.SNEHALATHA, JJ. ----------------------------------------------- Crl.Appeal No.1091 of 2018 ----------------------------------------------- Dated this the 5[th] day of June, 2024 ## JUDGMENT ## P.B.Suresh Kumar, J. The sole accused in S.C.No.1396 of 2006 on the files of the Court of the Additional Sessions Judge for the Trial of Cases relating to Atrocities and Sexual Violence Against Women and Children, Thiruvananthapuram, is the appellant. He stands convicted and sentenced for the offences punishable under Sections 376 and 377 of the Indian Penal Code (IPC). 2. The victim in the case was a minor girl aged about 12 years. On 26.04.2001, at about 8.30 a.m., she along with her younger brother went to a paddy field with food for her father who was working there. Since the younger brother of the victim remained with their father, the victim headed back home by herself. After about half an hour, the victim rushed back crying to her father and complained to him that she had -: 3 :- Crl.Appeal No.1091 of 2018 been assaulted by someone on her way back home. The father then took the victim home and she disclosed to her mother that she was sexually assaulted by a stranger. The matter was immediately reported to the police and a case was registered, after recording the statement of the victim. Even though it was stated by the victim in the statement that she can identify the assailant, she had not disclosed any of the features of the assailant to the police for identification. 3. Although a case was registered on the date of occurrence itself, final report was not filed for quite some time, for the investigating officers could not ascertain the identity of the assailant and apprehend him. Later, after about 3½ years, final report was filed in the case against the appellant alleging that he himself had disclosed to the police that it was he who committed rape on the victim while he was being interrogated in another case that was registered by the Kollam Police. The allegations in the final report is that on 26.04.2001, at about 9 a.m., while the victim was returning home from the place of work of her father, the appellant stopped her by holding her churidar, closed her mouth, carried her to a nearby place, made her lie on her back, removed her Crl.Appeal No.1091 of 2018 -: 4 :- clothes, inserted his genital organ into her mouth and had sexual intercourse with her thereafter, after threatening her with dire consequences. It was alleged in the final report that there was another person as well along with the appellant at the time of occurrence. As such, the appellant was arrayed as the first accused and the person allegedly present with him at the time of occurrence was arrayed as the second accused. Since the second accused in the case could not be apprehended by the police, after some time, the case against the appellant was split up and committed for trial to the Sessions Court and the Sessions Court made over the case for trial to the Special Court which tried the appellant. 4. The Special Court framed charges against the appellant under Sections 376 and 377 IPC and he pleaded not guilty to the charges. Thereupon, the prosecution examined 12 witnesses as PWs 1 to 12 and proved through them 10 documents as Exts.P1 to P10. MOs I to IV are the material objects in the case. When the incriminating circumstances were put to the appellant in terms of the provisions contained in Section 313 of the Code, the appellant denied the same. The Special Court, thereupon, on a consideration of the evidence Crl.Appeal No.1091 of 2018 -: 5 :- on record, held that the appellant is guilty of the offences punishable under Sections 376 and 377 IPC, convicted him for the said offences and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,00,000/- for the offence punishable under Section 376 IPC and to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 377 IPC. The appellant is aggrieved by his conviction and sentence and hence, this appeal. 5. Heard the learned counsel for the appellant as also the learned Special Public Prosecutor. We have also called for and perused the case diary. 6. The learned counsel for the appellant opened his arguments by pointing out that there was no investigation in the case to ascertain the identity of the assailant and the final report was laid solely based on the disclosure alleged to have been made by the assailant before the police in another case registered against him at the Kollam East Police Station. It was also argued by the learned counsel that the conviction of the appellant was solely based on the identification of the assailant by the victim in court after about 16 years. According Crl.Appeal No.1091 of 2018 -: 6 :- to the learned counsel, no conviction can be based on such an identification, in a case where the assailant was a stranger to the victim. In fact, the victim deposed that the police had shown to her the appellant after about 2 years from the date of occurrence and she had identified him as the assailant. It was argued by the learned counsel that the said conduct of the police in showing the appellant to the victim for identification, in a case of this nature, is wholly unauthorised and inasmuch as the assailant was a stranger to the victim, the investigating officer ought to have conducted a test identification parade before arraying the appellant as an accused in the case. It was also argued by the learned counsel that even assuming that such a course is permissible, in the place of a test identification parade, since the victim was a girl of tender age then, that too, hailing from the lower strata of the society, her evidence in court that she identified the appellant as the assailant, cannot be relied on, for, in all probability, the victim must have been prompted by the investigating officer that the appellant was the assailant and the victim would have had no option, but to agree to the assertion made by the investigating officer. The learned counsel concluded his argument asserting that -: 7 :- Crl.Appeal No.1091 of 2018 inasmuch as the appellant was arrayed as an accused in several other cases as well, this is a case in which he has been deliberately fixed by the police as the accused, for they could not apprehend the real assailant in the case. 7. The learned Special Public Prosecutor conceded that there is no material, whatsoever, in the case to connect the appellant with the crime, except the oral evidence tendered by the victim. According to the learned Special Public Prosecutor, when the oral evidence tendered by the victim is of sterling quality, there certainly can be a conviction solely based on the same. It was also argued by the learned Special Public Prosecutor that it is not obligatory for the prosecution to conduct a test identification parade in every case and merely for the reason that the same was not conducted, the conviction cannot be set aside. In the context of the submissions made by the learned counsel for the appellant as regards the identity of the assailant, it was argued by the learned Special Public Prosecutor that victims of sexual assault will have a photographic memory of the features of their assailants and that they would never be forgotten. According to the learned Special Public Prosecutor, in the circumstances, the Special Crl.Appeal No.1091 of 2018 -: 8 :- Court cannot be found at fault with for placing reliance on the identification of the appellant made by the victim in court, even though a few years had passed in the interregnum. The learned Special Public Prosecutor placed reliance on the decision of the Apex Court in Malkhansingh v. State of M.P. , (2003) 5 SCC 746, in support of the said proposition. The learned Special Public Prosecutor also argued that it is because of the non-cooperation of the appellant that the trial of the case got delayed and that, advantage of the same cannot be taken by the appellant. 8. The point that arises for consideration is whether the conviction of the appellant and the sentence imposed on him, are sustainable in law. 9. Before considering the sustainability of the various arguments advanced by the learned counsel for the parties on either side, let us refer to the relevant evidence in the case. PW1 is the father of the victim. PW1 deposed that on the date of occurrence, the victim who came to his workplace along with her younger brother had to go back home alone, and after sometime, she returned to him crying. PW1 deposed that the victim then told him that somebody assaulted her on Crl.Appeal No.1091 of 2018 -: 9 :- her way back home. It was the version of PW1 that he then took the victim to his house where she disclosed to her mother that she was sexually assaulted by a person on the way. PW1 deposed that he immediately informed the matter to the police. PW5 is the victim in the case. PW5 was aged 26 years at the time when she deposed in court. PW5 testified that while she was returning home at about 9.00 a.m. from the workplace of her father on the relevant day, the appellant who was lying on a rock near the place stopped her by holding her churidar, pushed her down and consequently, she fell down by the nearby stream. PW5 deposed that the appellant then carried her to a place in between the rocks and forcefully laid her down there and when she cried out loud, the appellant threatened her that she will be done away with. It was deposed by the victim that thereupon, the appellant inserted his genital organ into her mouth and later had sexual intercourse with her and fled from the scene in a bike along with another, thereafter. PW5 affirmed in her evidence that she along with her parents and others went to the police station and gave Ext.P3 First Information Statement on the date of occurrence. It was deposed by her that even though she had no prior Crl.Appeal No.1091 of 2018 -: 10 :- acquaintance with the appellant, she had clearly seen the assailant and that the appellant was the assailant. It was also deposed by the victim that at the time when the occurrence took place, she was studying in fifth standard and while she was pursuing her studies in the seventh standard, the police had shown to her the appellant and she identified him. 10. PW7 was the Assistant Surgeon attached to the Government Women and Children Hospital, Thycaud during April, 2001. PW7 deposed that on 26.04.2001, she examined the victim and issued Ext.P6 wound certificate. PW7 deposed that the victim had disclosed to her that “അചന� ക�പ� വയല�ൽ കക�ണപ��യ� കക�ടത�ട� വരന വഴ� കണ�ൽ അറ�യ�വന ഒര�ൾ ബല�ൽ ഉ�ദവ�ച.” PW7 also deposed that on examination, the lips of the victim were found swollen and there was a small injury on the right side of her lips. PW7 also deposed that there was an abrasion on the left knee of the victim and on local examination, her hymen was found torn. The opinion of PW7 was that there was evidence of vaginal penetration. 11. PW9 was the Sub Inspector of Police attached to Kollam East Police Station during 2003. PW9 deposed that during interrogation, pursuant to the arrest of the appellant in -: 11 :- Crl.Appeal No.1091 of 2018 connection with another crime namely, Crime No.642 of 2003 of Kollam East Police Station, the appellant disclosed that it was he who committed rape on the victim girl and the said fact was communicated to the Sub Inspector of Police, Aryanad Police Station. Even though several questions were put to PW9 by the counsel for the appellant during cross-examination to elicit from PW9 that the appellant did not make any disclosure to him and that the appellant was fixed for extraneous reasons, PW9 stood by his version in the chief-examination as regards the complicity of the appellant in the case against the victim. PWs 10 to 12 were the police officers who investigated the subject case. Among them, PW11 deposed that it was based on the disclosure made by the appellant before PW9 that he was arrayed as an accused in the case. 12. The evidence discussed above would establish beyond reasonable doubt that the victim was subjected to sexual assault on 26.04.2001 at about 9 a.m. as alleged by the prosecution. The learned counsel for the appellant does not dispute the finding rendered by the Special Court as regards the occurrence. Instead, the vehement argument advanced by the learned counsel was against the finding rendered by the -: 12 :- Crl.Appeal No.1091 of 2018 Special Court as regards the identification of the accused. The fact that the assailant was a person with whom the victim had no previous acquaintance, is not in dispute. Even though the victim disclosed in the First Information Statement that she can identify the assailant, she did not disclose therein the special features, if any, of the assailant. No doubt, the victim later identified the appellant as the assailant in court. But, the said identification was after a period of almost 16 years from the date of occurrence. It is solely based on the said identification that the appellant was convicted, for there is no other evidence to connect the appellant with the crime. The pointed question, therefore, is whether any reliance could be placed on such an identification by the victim to convict the accused in a case of this nature. 13. During the investigation of a crime committed by persons unknown to witnesses, the persons arrested on suspicion of their complicity in the crime by the investigating agency have to be confronted with the witnesses, so that they can find out whether they are the persons who committed the crime, for, before the investigating agency sends up a case to the Court, they must be satisfied that the persons arrested by -: 13 :- Crl.Appeal No.1091 of 2018 them are the persons accused of having committed the crime. If they were known to the witnesses, the witnesses would have certainly given their names and established their identity, but when they are not known, their identity could be established only if the witnesses, on seeing them, say that they are the offenders. It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless, unless there has been a previous identification proceedings to lend support to the identification made by the witness in court. It is all the more so when identification of accused is made after several years [See Kanan v. State of Kerala , (1979) 3 SCC 319]. 14. If the investigating agency brings before the witnesses those persons arrested by them on suspicion and if the witnesses are not in a position to assert on their own that the shown persons are not the real culprits, there would be a tendency on the part of the witnesses to merely agree that the arrested persons are the real culprits. Such tendencies would be more, if the witnesses belong to the lower strata of the society. Likewise, if the witnesses are shown the persons arrested on suspicion after a long lapse of time, the possibility Crl.Appeal No.1091 of 2018 -: 14 :- of witnesses committing mistakes as to the identity also cannot be ruled out, especially in the case of twin brothers and persons who have close similarities etc. If the investigating agency proceeds on the basis of such affirmation by the victim, the consequences would be disastrous, for, if the apprehended persons are not the real culprits, the real culprits would escape from the clutches of law and innocent persons would face the ordeal of trial. At the same time, instead of showing suspected persons apprehended by the police to witnesses, if the witnesses are confronted with the suspects mixed along with other innocent men and if the witnesses then pick the real culprits out of the group, that would add to the credibility of their statement that they were the offenders. This is the primary object of the test identification parade [See Mukesh Singh v. State (NCT of Delhi) , 2023 KHC OnLine 6804]. 15. No doubt, the identification of an accused in court constitutes substantive evidence and a test identification parade would only lend as corroboration to such identification by the witness in court. But, as a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of Crl.Appeal No.1091 of 2018 ## -: 15 :- earlier identification proceedings. This rule of prudence is subject to the exception, if the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration. Since test identification parade does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible. The weight that is to be attached to such identification is a matter to be determined by the court in the circumstances of each case [See Rajesh v. State of Haryana , (2021) 1 SCC 118]. 16. Reverting to the facts of the case on hand, as noticed, even though the assailant of the victim was a stranger to the minor girl, no test identification parade was conducted. Of course, the victim deposed that about 2 years after the occurrence, the appellant was shown to her and she identified him as the assailant. Inasmuch as the assailant was a person with whom the victim had no prior acquaintance, according to us, in a case of this nature, the investigating officer ought not have shown the appellant to the victim, for, as already indicated, the possibility of the victim making an error of judgment as to the identity of the assailant who was a stranger and whose features had not been noticed by her at the time of -: 16 :- Crl.Appeal No.1091 of 2018 occurrence which took place about 2½ years, cannot be ruled out. In Mohd. Rijwan v. State of Haryana , 2023 SCC OnLine SC 1329, the Apex Court took the view that such conduct on the part of the investigating authority would make the identification made by the victim in court, doubtful. The relevant passages of the judgment read thus : “9. Admittedly, PW-6 did not know the appellant before the incident at 04:00 p.m. on 17th February 2004. But test identification parade was not conducted. A test identification parade is conducted as a part of the investigation when an eyewitness does not know the accused before the incident. It is conducted to ascertain whether the witness can identify the accused from the midst of several persons having similar appearances. The identification of the accused in the test identification parade by the eyewitness, though not conclusive, may, in a given case, give credence to the identification of the accused before the Court by the eyewitness. However, the failure to conduct a test identification parade is not always fatal. It all depends on the facts of each case. 10. In the present case, there is a disturbing feature. Instead of holding a test identification parade, PW-6 was called to the office of the Superintendent of Police, and the appellant was shown to him in the office. Thus, the identification of the appellant by PW-6 in the court is not free from reasonable doubt. It becomes very doubtful as the accused was shown to the witness in the office of the Superintendent of Police, only with a view to see that he identifies the accused in the court. This procedure is not known to law......” 17. True, it was held by the Apex Court in Crl.Appeal No.1091 of 2018 -: 17 :- Malkhansingh that on account of the traumatic and tragic experiences faced by rape victims, the faces of their assailants would be imprinted in their memory and they may not err while identifying such assailants. The relevant passage of the said judgment reads thus: “The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity.” It is seen that in Raju v. State of M.P. , (2008) 15 SCC 133, the ## Apex Court observed thus : “10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically Crl.Appeal No.1091 of 2018 -: 18 :- applied to the facts of every case of sexual assault which comes before the court. 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” In the light of the decision aforesaid, we are of the view that the judgment of the Apex Court in Malkhansingh cannot be understood as laying down the proposition that on account of the traumatic and tragic experiences faced by victims of sexual assault, inasmuch as the face of the assailants will be imprinted in their memory, they would never commit a mistake as regards the identity of the assailant, irrespective of the length of the time interval. It all depends on the facts and circumstances of each case. 18. The learned Special Public Prosecutor pointed out that the appellant is an accused in several other cases and therefore, there is no reason to disbelieve the evidence Crl.Appeal No.1091 of 2018 -: 19 :- tendered by the victim that he was the assailant. We do not endorse such an argument, as we fail to understand the relevance of the involvement of the appellant in other cases, to hold that he was the assailant of the victim in the case on hand. As a matter of fact, such a contention raised by the Special Public Prosecutor would only, according to us, add credence to the argument advanced by the learned counsel for the appellant that the appellant has been deliberately fixed as an accused in this case. We are, however, not venturing into an adjudication on the correctness of the said contention as there are no materials whatsoever on record in support of the same. 19. Another argument advanced by the learned Special Public Prosecutor is that it is on account of reasons attributable to the appellant that the delay in conducting the trial of the case occasioned and therefore, the appellant cannot be permitted to take advantage of the same. On a perusal of the materials on record, it is seen that several factors including that the appellant is an accused in several other cases contributed to the delay. Even assuming that the dilatory tactics adopted by the appellant delayed the trial of the case, according to us, on that ground, it cannot be held that the -: 20 :- Crl.Appeal No.1091 of 2018 identification of the appellant as the assailant by the victim, can be accepted. 20. In the light of the discussion aforesaid, we are of the view that the conviction of the appellant in the case, solely based on the identification made by the victim after a period of about 16 years in court, which was not corroborated by a previous identification procedure, is unsustainable in law and is liable to be set at naught. In the result, the Criminal Appeal is allowed. The conviction of the appellant and the sentence imposed on him 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 is directed to communicate the above order forthwith to the concerned prison, where the appellant is undergoing incarceration. Sd/P.B.SURESH KUMAR, JUDGE. Sd/M.B.SNEHALATHA, JUDGE. ds 28.05.2024