State of Kerala v. Unnikrishnan and Kuttan alias Vinod

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 20TH DAY OF JUNE 2013/30TH JYAISHTA 1935** ## **CRL.A.No. 951 of 2006 (F)** **-----------------------------------[S.C. NO.402/2001 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE, (FAST TRACK COURT NO.II), PALAKKAD DTD. 10/05/2006]** **.............** **APPELLANTS/ACCUSED 1 & 2: --------------------------------------------** **1. UNNIKRISHNAN, AGED 34 YEARS, S/O. KANDAMUTHAN, NOCHUPULLY, PUDUPPARIYARAM, PALAKKAD.** **2. KUTTAN @ VINOD, AGED 27 YEARS, S/O. CHANDRAN, NOCHUPPULLY, PALAKKAD.** **BY ADVS.SRI.M.T.SURESHKUMAR, SRI.A.R.GANGADAS.** ## **RESPONDENT/COMPLAINANT:** **--------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE - PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. V.S. SREEJITH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **P.BHAVADASAN, J. --------------------------------------Crl. Appeal No.951 OF 2006 --------------------------------------Dated this the 20[th] day of June, 2013.** ## **J U D G M E N T** Two persons were prosecuted for the offence punishable under Section 376(2)(g) of Indian Penal Code. Both of them were found guilty and they were, therefore, convicted and sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- each with default clause of rigorous imprisonment for a further period of one year each under Section 376(2)(g) IPC. It was also directed that if the fine amount was realised, the same shall be given to PW1, mother of the victim (PW12) as compensation. Set off as per law was allowed. 2. The incident which gave rise to the case is said to have occurred on 25.02.1998. PW12 is the victim. PWs 1 and 2 are her parents. The allegation is that on 25.02.1998, while the parents of the victim were in the hospital in connection with **Crl.Appeal No.951/2006** **2** operation of one their daughters, PW12 was called by the 1[st] accused to his house and she was ravished by him followed by the 2[nd] accused. When the victim went to hospital to meet the parents in the evening on the same day, she showed reluctance to go back to home and on enquiry she narrated the incident to them. 3. The victim is a mentally challenged girl. PW1 is her mother who laid Ext.P1 First Information Statement on 07.03.1998. PW11 recorded the same and registered a crime as per Ext.P1(a) First Information Report. PW12 was sent for medical examination and was examined by PW5 doctor who issued Ext.P4 wound certificate. PW13 took over the investigation. He prepared Ext.P2 scene mahazar and seized the dresses worn by the victim at the relevant time namely, M.O.s 2 to 5 as per Ext.P3 mahazar. After the arrest of the accused, he had them sent for potency test and obtained necessary certificate. He completed the investigation and laid charge before court. **Crl.Appeal No.951/2006** **3** 4. The court before which final report was laid took cognizance of the offence and on finding that the offence is exclusively triable by a Court of Sessions, the learned Magistrate committed the case to Sessions Court, Palakkad under Section 209 Cr.P.C. The said court made over the case to Additional Sessions Fast Track Court-II, Palakkad for trial and disposal. The latter court on receipt of records and on appearance of the accused framed charge for the offence punishable under Section 376(2)(g) IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 15 examined and Exts.P1 to P12 marked. M.O.s 1 to 5 were got identified and marked. 5. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they are innocent. On finding that the accused could not be acquitted under Section 232 Cr.P.C, they were asked to enter on their defence. They chose to adduce no evidence. **Crl.Appeal No.951/2006** **4** 6. On appreciation of the evidence in the case, the court below found that the testimony furnished by PW12 supported by the evidence of PW5 taken along with Ext.P4 is sufficient to come to a conclusion that the offence has been committed by the accused persons. Accordingly, they were found guilty and the conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal. 7. It is pointed out that the 1[st] appellant is no more and the charge against him therefore stands abated. Learned counsel appearing for the 2[nd] appellant contended that the court below has omitted to note certain vital aspects which would go to the very root of the prosecution case and therefore, the conviction is bad. It is pointed out that PW12, the victim is a mentally challenged person and there was no voire dire test to ensure her capacity to depose and that is an illegality. It is also pointed out that the said witness was examined with the help of an interpreter and there is nothing on record to show that the said interpreter is a competent person. There is violation of Rule 52 of the Criminal Rules of Practice and that vitiates the trial. So, **Crl.Appeal No.951/2006** **5** according to the learned counsel, the evidence furnished by PW12 through the interpreter cannot be looked into. 8. It is also pointed out by the learned counsel appearing for the 2[nd] appellant that the long delay in lodging the First Information Statement is also fatal to the prosecution case and there is no reasonable explanation offered for the delay. It would show the hollowness of the case put forward by the prosecution. 9. It is further pointed out by the learned counsel that the evidence of PW12 cannot be relied on for more than one reason. A reading of the evidence of PW12 would show that to certain questions she had given no answers which would show that she was not capable of understanding the questions and was not able to give answers. Therefore, her testimony cannot be readily accepted. It is further pointed out that in Ext.P1 First Information Statement, it was the 1[st] accused who had initially taken the victim to the place where she was ravished and that was followed by the 2[nd] accused. But while giving evidence in court, the role is reversed and that shows that the witness has no consistent version regarding the incident at all. **Crl.Appeal No.951/2006** **6** 10. In support of his contention that non administration of oath vitiates the evidence, learned counsel for the 2[nd] appellant relied on the decision in _**State of Rajasthan** vs._ _**Darshan Singh @ Darshan Lal**_ (2012 (2) Crimes 318 (SC)). The above aspects, according to the learned counsel, have been omitted to be taken note of by the court below and they affect the prosecution case and they could not have been overlooked and the conviction and sentence therefore cannot stand. 11. Learned Public Prosecutor, on the other hand, pointed out that most of the contentions raised by the learned counsel for the 2[nd] appellant are too technical in nature and have no bearing on the real issue involved in the case. There is no reason to disbelieve PW12 as she has given a narration of the incident that transpired on 25.02.1998. The court below has found that she is a competent person who is able to give rational answers to the questions put to her and therefore her evidence can be accepted. It is true, according to the learned Public Prosecutor, that the records may indicate that oath has not been administered to PW12 and interpreter. But that by itself is not sufficient to **Crl.Appeal No.951/2006** **7** discard the evidence of PW12. Learned Public Prosecutor relied on Section 7 of the Oaths Act in support of his case and pointed out that any omission to take or administer oath does not vitiate the evidence at all. Learned Public Prosecutor pointed out that it is not as if conviction is based solely on the basis of the evidence of PW12. The evidence of PW12 gets sufficient corroboration at the hands of PW5 doctor who examined the victim and who issued Ext.P4 wound certificate. 12. As regards the inconsistency in the sequence of events, learned Public Prosecutor pointed out that it may not have much bearing on the issue since it is alleged that both the accused had violated the body of the victim and whether it was the 1[st] accused who initially did the act or the 2[nd] accused is of no consequence at all. Learned Public Prosecutor pointed out that the court below which had the occasion to watch the demeanour of PW12 has chosen to accept her evidence and there is no reason as to why this Court should hold otherwise. According to the learned Public Prosecutor, the court below was justified in coming to the conclusion that the offence had been made out. **Crl.Appeal No.951/2006** **8** 13. PW12 is the victim in this case and she is a mentally challenged person. That is evident from the testimony of PW9 who examined her and issued Ext.P7 certificate. PW1 is her mother and PW2 is her father. PWs 1 and 2 have knowledge about the incident as told to them by PW12. A reading of Ext.P1 would indicate that complaint initially was for attempt to commit rape and during investigation it was revealed that actual rape has been committed and a report was filed incorporating the offence under Section 376(2)(g) IPC. 14. The evidence regarding commission of sexual assault is confined to PW12. The question is whether the evidence of PW12 is convincing enough to come to a conclusion that offence has been committed. It is true that from the records it does not appear that voire dire test was conducted with reference to PW12. It also does not reflect from the records that oath was not administered to PW12 because she was incapable of understanding the significance of oath. It is also true that going by Rule 52 of the Criminal Rules of Practice, it is mandatory to administer oath to interpreter. The consequence of omission will **Crl.Appeal No.951/2006** **9** be dealt with little later. 15. Coming back to the evidence of PW12, she has stated in court about what had transpired on the date of the incident both in words as well as by signs which had been recorded by the learned Sessions Judge. To certain questions, she answered in words and to certain questions she answered by signs and to certain other questions she answered by gestures which were interpreted by the interpreter whose aid was taken by the court. Though there was challenge regarding the competency of the interpreter, there is nothing to show that the interpreter was incompetent. From the records, it is seen that it was from a school which deals with such type of students that a Teacher was made available as an interpreter to interpret the signs and gestures made by PW12. There is nothing to show that the interpreter was incompetent to interpret the signs and gestures made by PW12. Even otherwise, it was as per the orders of the court that the service of the Teacher concerned was made available and there is no reason to believe that the court would not have ensured the competency of the interpreter. **Crl.Appeal No.951/2006** **10** 16. On going through the evidence of PW12, it is seen that, at the time of giving evidence, the case was that it was the 2[nd] accused who had taken her initially and violated her body followed by the 1[st] accused which is not in tune with Ext.P1 where it is alleged that it was the 1[st] accused who had initially taken the victim. But, this anomaly or inconsistency is of no consequence since both are accused of having violated the body of the victim. Whether it was done first by the 1[st] accused or the 2[nd] accused is immaterial. Therefore this inconsistency which is highlighted is of no significance and does not have a bearing on the issue. 17. It is true that in Ext.P1 what is stated is only about an attempt to commit rape. But it is seen from the records that during investigation it was revealed that actual sexual assault has been committed and therefore, the investigating officer filed necessary report incorporating the offence under Section 376 (2) (g) IPC. If any further evidence is required, that is furnished by PW5 doctor and Ext.P4 certificate issued by him. PW5 has stated that there are signs of penetration and he, based on the examination, says that the possibility of sexual assault cannot be **Crl.Appeal No.951/2006** **11** ruled out. Ext.P4 says that hymen was absent but the vagina admitted two fingers. There is no suggestion either to PW1 or to PW2 or to PW12 to the effect that the victim was used to sexual intercourse prior to the act committed by the accused persons. Therefore, from the evidence of PW12 taken along with the evidence of PW5 and the entry in Ext.P4, it is clear that PW12 was sexually violated. Further corroboration in this regard can be received from Ext.P11 which is the Chemical Analysis Report. The garments worn by the victim were sent for chemical examination and the report shows that human semen and blood were detected in M.O.s 3 and 4. One may recollect here that the evidence of PW12 is to the effect that immediately after the incident, there was bleeding and that gets corroboration from the chemical analysis report. That evidence is sufficient enough to come to a conclusion that offence has been committed as alleged. 18. Coming back to the contention based on non administration of oath and that it vitiates the conviction, one has to necessarily refer to the decision of the Apex Court relied on by the learned counsel for the 2[nd] appellant in _**State of Rajasthan**_ **Crl.Appeal No.951/2006** **12** _vs._ _**Darshan Singh @ Darshan Lal**_ (2012 (2) Crimes 318 (SC)). The relevant paragraph namely, paragraph 23 of the said decision reads as follows: “23. Be that as it may, her statement had been recorded with the help of her father as an interpreter, who for the reasons given by the High Court, being an interested witness who had assisted during the trial, investigation and was examined without administering oath, made the evidence unreliable. In such a fact-situation, the High Court has rightly given the benefit of doubt and acquitted the respondent”. 19. There it was found that the statement of the victim was recorded with the help of the father of the victim acting as interpreter and no oath was administered. The Apex Court found that the father was an interested witness and that he had actively taken part in the investigation and in the proceedings and therefore, it may not be possible to rely on such an evidence to come to a conclusion that offence has been made out. The decision does not go to the extent of saying that due to the non administration of oath, the evidence is inadmissible or it will be **Crl.Appeal No.951/2006** **13** illegal to act on such an evidence. 20. The issue regarding administration of oath is governed by the Oaths Act. The purpose of the Oaths Act is to inform the person concerned that he is bound to speak the truth. The omission to administer oath is taken care of by Section 7 of the Oaths Act which reads as follows: “7. Proceedings and evidence not invalidated by omission of oath or irregularity.- No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth”. 21. The consequence of non administration of oath either by inadvertent omission or deliberately was considered in the decision in _**Mohamed Sugal Esa Mamasan Rer Alalah**_ vs. _**The**_ _**King**_ (A.I.R (33) 1946 Privy Council 3). After referring to Section 13 of the earlier Act, it was held that non administration **Crl.Appeal No.951/2006** **14** of oath has no effect on the admissibility of the evidence. It was also held that even a deliberate act of non administration of oath would be taken in by Section 13 of the earlier Act which is presently Section 7 of Act 44 of 1969. The issue was also considered in _**Rameshwar S/o.Kalyan Singh** vs._ _**The State of Rajasthan**_ (A.I.R (39) 1952 Supreme Court 54). Therein it was held as follows: “An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in S.118, Evidence Act. The Oaths Act does not deal with competency and under S.13 of that Act omission to take oath does not affect the admissibility of the evidence. It therefore follows that the irregularity in question cannot affect the admissibility of the evidence of the girl”. 22. This Court had occasion to consider the object and purpose of the Oaths Act and non administration of oath in the decision reported in 1987 (2) KLT S.N. 45 (Case No.65) wherein it was held as follows: “S.118 of the Evidence Act deals with competency of witness. The rule generally is in favour of admission **Crl.Appeal No.951/2006** **15** of evidence though the weight to be attached to it will naturally be a matter for consideration by the court. No witness is incompetent unless the court considers he is unable to understand the questions put to him or to give rational answers by reason of disability as contemplated in the section such as tender years etc. There is always competency unless the court considers otherwise. If a witness is not competent, he cannot be examined in court. The provisions of the Oaths Act deal not with competency of witnesses but with the administration of oath to witnesses including child witnesses. Oath or affirmation shall be made by all witnesses. In the case of a witness who is a child under twelve years of age where the court is of the opinion that though the witness understands the duty of speaking the truth, he does not understand the oath or affirmation, there is no question of administering oath or affirmation to him. But the absence of oath or affirmation shall not render his evidence inadmissible, it shall also not affect his obligation to state the truth. It is clear that oath or affirmation could be administered to a witness only if he understands the duty of speaking truth and the nature of an oath or affirmation. There must be clearly present in the mind of the witness his obligation to speak the truth and the consequence of **Crl.Appeal No.951/2006** **16** not speaking the truth. While it is mandatory to administer oath or affirmation to all witnesses, where the witness is a child under twelve years of age and does not understand the nature of an oath or affirmation, the same cannot be administered to him. This rule does not apply to witness, who is or who has passed twelve years of age. Where a witness is below twelve years of age the court would question him in order to satisfy itself that he understands the duty of speaking the truth and the nature of the oath or affirmation. Competency to testify depends on ability to understand questions and to give rational answers. Ordinarily the court can proceed on the basis that a witness who appears before it is competent to testify. But where witness is a child (or of extreme old age or disease etc), the court is put on the alert and applies its mind to consider whether the witness can understand questions put to him and give rational answers and is competent to testify. Ordinarily this satisfaction is arrived at by preliminary examination of the witness by the court. This is not to say that preliminary examination is mandatory in the sense that in its absence evidence should be treated as inadmissible; general rule is in favour of competency and satisfaction, if necessary, can be arrived at in the course of the evidence. However, court would do **Crl.Appeal No.951/2006** **17** well to conduct preliminary examination to satisfy itself on this score in regard to witnesses suffering from disability as contemplated in S.118. It is desirable to bring on record questions and answers put to witness and to record satisfaction in terms of S.118. This is not to say that in the absence of record or specific note the evidence would become inadmissible. Whether the court has been so satisfied is a matter which can also be inferred from the record. This principle would apply to satisfaction of the court in regard to administering oath or affirmation to a child witness under the provisions of Oaths Act. In the present case we find that the note made by the learned Sessions Judge would clearly indicate that he conducted preliminary examination of the witness to decide on the competency of the witness. Since the witness was not a child under twelve years of age, learned Sessions Judge evidently did not conduct preliminary examination to verify whether the witness understands the nature of oath or affirmation. We find no infirmity in the procedure adopted by the learned Sessions Judge, though we feel that he would have done well to record the questions and answers themselves”. 23. A reading of Section 7 of the Oaths Act and on going through the various decisions referred to above, it becomes clear **Crl.Appeal No.951/2006** **18** that non administration of oath does not affect the admissibility of evidence. Administration of oath only intends to caution the witness that he is bound to speak truth. It is also significant to notice that the courts have held that in cases where the person concerned is incapable of understanding the significance of oath, oath need not be administered. The contention raised on behalf of the appellant that non administration of oath to both PW12 and the interpreter vitiates the entire evidence cannot be accepted. If that be so, there is no reason to reject the findings of the court below or to hold that the evidence is insufficient to come to the conclusion that the accused has committed the offence as alleged against him. The conviction has therefore only to stand. 24. What now remains to be considered is the question of sentence. It is seen that the court below has been extremely considerate in the matter of sentence and has awarded only a minimum sentence. No further leniency can therefore be shown in that regard. **Crl.Appeal No.951/2006** **19** In the result, the appeal is without merit and it is accordingly dismissed confirming the conviction and sentence passed by the court below. **P.BHAVADASAN JUDGE** smp