THOTTAKKARA CHATHAN v. THE STATE

## IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 Crl.Rev.Pet.No. 591 of 2004(D) -----------------------------CRA.224/2000 of SESSIONS COURT(ADHOC), MANJERI CC.186/1996 of JFMC, NILAMBUR .................... ## REVN. PETITIONER: APPELLANT/ACCUSED: THOTTAKKARA CHATHAN, S/O. CHATHAN, VAZHIKADAVU AMSOM, MARUTHAKADAVU, PARAMMALPOTTI. BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM RESPONDENTS: RESPONDENT/COMPLAINANT: THE STATE, REPRESENTED BY ASSISTANT SUB INSPECTOR OF POLICE, VAZHIKADAVU (CRIME NO.58/96), REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.K.RAVIKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY PASSED THE ## **THOTTATHIL B. RADHAKRISHNAN, J.** ----------------------------------------------Crl.R.P. No.591 of 2004 ----------------------------------------------Dated this the 12th day of August, 2008 ## **J U D G M E N T** ## “ **C.R** .” - 1.The revision petitioner stands convicted and sentenced in a case instituted on a police report alleging commission of offences punishable under Sections 452 and 354 of the Indian Penal Code. 2. The allegation against the accused is that he, with the intention of causing hurt or assault, outraging the modesty of PW2, a mentally challenged female, then aged 22 years and having made preparation therefor, criminally trespassed into her residence at about 1.00 p.m. on 19.06.1996, while she was alone; her mother PW1 having then gone to the village office; overpowered her and outraged her modesty and left the scene when the victim cried out. 3. Apart from the victim and her mother; their immediate neighbours, PW3 and her son PW4; PW5, the witness to Ext. P2 – scene mahazar; PW6, the doctor who examined the victim and Crl.R.P.591/04 ## Page numbers issued Ext. P3 wound certificate; PW7, the Police Officer, who identified the police papers and stated that the investigating officer – CW10 – is no more; were examined. 4. The accused denied the allegations and stated that it is a false case, in his examination under section 313 Crl.P.C. 5. The trial court found the accused guilty; convicted and sentenced him to undergo simple imprisonment for one year and to pay fine of Rs.1000/- under Section 452 IPC; in default in payment of fine, to undergo simple imprisonment for one month and to undergo simple imprisonment for six months under Section 354 IPC, with an order of concurrence in sufferance. It was also ordered that the fine, on realisation, be paid as compensation to PW2, the victim. The Court of Session dismissed his appeal against that. Hence this revision. 6. The learned counsel for the revision petitioner argued that the depositions of the victim-PW2 and her mother-PW1 are ridden with material contradictions and it is wholly unsafe to convict the Crl.R.P.591/04 ## Page numbers accused on the basis of their evidence, when PW3 and PW4 have been declared hostile to the prosecution and Ext.P3 certificate issued by PW6, the doctor who examined the victim, does not disclose any injury to her person. It is suggested that, accepting the defence version of animosity between the accused and PW1, it ought to have been held that the case is one foisted to wreck vengeance. Ultimately, it was canvassed that the punishment is excessive. 7. The learned public prosecutor argued that the courts below have rightly appreciated the evidence and the conviction stands on the basis of the materials on record and that the sentences imposed are too lenient and call for no interference. 8. PW2, the victim, gave evidence that she was having lunch; the accused entered her house, took her to the kitchen catching her by the hand; squeezed her breasts; lay on her after forcing her to the floor; removed the dhoti; placed his penis in between her thighs and ran away when she cried out. She identified the material objects: MO 1 – skirt, MO 2 – lunki and MO 3 – blouse, Crl.R.P.591/04 ## Page numbers as belonging to her and worn by her. She stated that the buttons of the blouse broke off when the accused pulled it and that he put his hand into her blouse to catch her breast. She further stated that she was weeping and told the incident to her mother who returned by the time the _bangh_ (prayer call from the mosque) was heard. 9. The version of PW2 is impeached as unreliable on the basis of her statements in cross-examination. She had then stated that she was sitting outside the house when the accused came; she opened the door and came out; she had lunch at noon; the accused asked her whether he could go with her; she wept when he caught her by the hand; Kurumba (PW3) and others came; then the accused ran away. 10. But, in re-examination, with no suggestive questions, she stated that the accused caught her by the hand and took her inside the house, squeezed her breasts and lay on her and ran away only thereafter. She also stated that PW3 came only after Crl.R.P.591/04 ## Page numbers the accused left. To the question by the court, she said that PW3 came only after the entire episode was over. 11. The only suggestion by the defence, to spell out animosity, is that PW1 – the victim’s mother and the accused were carrying out agricultural activities in the farm of one Rawther and there was some controversy between them on account of that. Even in his examination under Section 313 Crl.P.C., apart from stating that it is a false and foisted case, the accused never put forth any specific situation generating such animosity that PW1, the mother of the victim, would place a case of molestation of her daughter, a mentally challenged woman of twenty-two years, exposing her to social stigma. There is no shred of legal evidence, reliable circumstance or any other material worth credence to infer that PW2 has made false statements and allegations touching her honour and modesty. PW1 denied the suggestion that there was difference of opinion between her and the accused in connection with the vegetable cultivation in Rawther’s garden. She was not questioned about any specific controversy between Crl.R.P.591/04 ## Page numbers her and the accused. The defence suggestion in that regard, on the whole, is only namesake. 12. Eye witness, if at all, would be a rare exception, in cases of sexual assaults. The victim in such a case is the best person to speak of the assault on her person. The court would assess the credibility of the victim’s version and consider its acceptability and corroborating materials, if any. If the evidence of the victim inspires confidence, that would suffice. 13. In appreciating the evidence of PW2, it has to be noticed at the outset that the version of her mother, PW1, that the victim is mentally challenged and such evidence of PW6, the doctor who examined her and issued Ext.P3 certificate, also recording among clinical features, that she appears to be mentally retarded, are not challenged by the accused. She could not identify colours and count the years and months that had passed after the incident. Her mother, as PW1, had also stated that that the victim has problem in identifying colours and in counting, but that she can talk and communicate properly. It is not in dispute Crl.R.P.591/04 ## Page numbers that the accused knew the victim; who, in her evidence as PW2, states about the accused by repeatedly mentioning his name. Though mentally challenged to the extent she is, there is no sustainable suggestion for the defence that her testimony is to be rejected on that ground. She was even asked in defence, regarding the alleged animosity and about Rawther’s garden. 14. The evidence of PW2 has to be appreciated with the aforenoted aspects in mind. She gave evidence on oath; withstood crossexamination and answered the questions put in re-examination and also a question put by the learned Magistrate. The courts below have believed her testimony. There is no artificiality in her evidence. Read as a whole, there is no contradiction in her version, to dissuade its acceptance or to persuade its exclusion. Her categorical statements regarding the assault on her person inside her home, having been found to be trustworthy, her statement in cross-examination that she came out of the house after lunch, when the accused came over, is no discrepancy, appealing to be material, when assessing the victim’s testimony as a whole. There is no legal infirmity pointed out in the Crl.R.P.591/04 ## Page numbers admission of evidence. There is no sustainable criticism of the evaluation and appreciation of the evidence on record by the courts below, which have concurrently believed the victim’s version in this case. 15. PW1, the mother of the victim, gave the first information statement to the police. She stated different aspects of the accusations, as complained to her by the victim. She also spoke of her daughter having complained to her about the assault on her person, including that the accused lifted the dress and placed his penis on the person of the victim. The statement of PW1 is on the basis of what was told to her by her daughter, living under her care. It is the first disclosure by the victim, to the person on whom she naturally reposes great confidence and who has no interest other than the safety of the victim. 16. The conduct of a woman in complaining to her mother about the sexual assault on her is relevant since such conduct is influenced by the factum of such assault which is a relevant fact for the issue arising for decision. When the question is whether Crl.R.P.591/04 ## Page numbers a woman was ravished, the fact that shortly after the alleged rape, she made a complaint relating to that crime, the circumstances under which, and the terms in which, the complaint was made, are relevant. - Illustration (j) under Section 8 of the Indian Evidence Act, 1872. In terms of Section 8, the relevant fact is conduct. A statement in that context becomes relevant in so far as it explains or accompanies conduct, which itself is relevant. The fact that, without making a complaint, the victim said that she had been ravished is not relevant as conduct under that Section, though it may be relevant as corroborative evidence under Section 157 of the Evidence Act. The complaint is of great functional importance from the point of view of Section 8. It is expressive of feeling; it evidences conduct unlike a bare statement which is only the communication of knowledge or information. A complaint is made with a view to redress or punishment. It is made to someone in authority, the police for instance, or a parent, or some other person to whom the complainant is justly entitled to look for assistance. It is not necessary that a complaint should be made to a public officer. The statements of the victim in a rape case, made immediately Crl.R.P.591/04 ## Page numbers after the occurrence, is admissible as a previous statement under Section 157 or under Section 8 of the Evidence Act - See **Parvati Devi** v. **State** {AIR (1952) SC 831}. If a girl on whom rape has been committed goes to her relatives straight, after the occurrence and complaint on her own initiative, her such statements will be a complaint for the purpose of Section 8. If a girl, immediately after the rape, is seen by the witnesses crying and, on being asked by them, says that she has been ravished, the statement will be admissible under Section 8, as explaining her act of crying - See **R** v. **Lee** , 7 Cr.App R 31; **E** .v. **Phagunia Bhuian** , 89 IC 1043; **Raman** v. **E** ., 1921 L 258; **Nga Aye Maung** v. **E** ., 1938 R 127. These principles apply in all cases of sexual assault, even to those not amounting to rape. It is all the more relevant in cases where the victim is under the care or control of the person to whom the complaint is made, in this case, the mother. 17. PW1, the mother, is not shown to have made, or to be having any reason to make, any false statement touching the honour of Crl.R.P.591/04 ## Page numbers her daughter, that too, a mentally challenged one. Her version as PW1 can be treated as admissible evidence, corroborating the victim’s version. The statement made by PW2, the victim, to her mother, is a complaint for the purpose of Section 8 of the Evidence Act and the statements of PW1 further corroborates the version of PW2. What the mother has stated cannot be treated as mere hearsay. Such corroboration further strengthens the testimony of the victim, who has been found to be worthy of credence. 18. PW3 Kurmba’s role in the prosecution story is of the immediate neighbour who heard the victim cry and reached there and also to whose house, the accused initially went and proceeded therefrom, to the victim’s backyard, on the excuse of collecting an agricultural implement. She was declared hostile to the prosecution, on denying even any familiarity with the accused. However, her son, PW4, who was also declared hostile to the prosecution, stated that his mother knew the accused. Though he stated that the accused had not been to their house on that Crl.R.P.591/04 ## Page numbers day, he disclosed being aware that the accused had molested PW2. 19. With the evidence on record as noticed above, the finding as to the guilt of the accused and his conviction are only to be sustained. No ground is made out calling for interference with the concurrent decisions of the courts below in that regard. 20. Having found the accused guilty of offences punishable under Sections 452 and 354 of the Indian Penal Code, including the invasion of the person of a mentally challenged female, then aged 22 years, the trial court was extremely lenient in sentencing. The trial court noticed that the offence committed by the accused is a very serious one. The victim, according to the court below, is an “unsound one”. It was also observed by the learned Magistrate that the atrocities against women are increasing in our society and the accused is to be punished “deterrently”. But, on sentencing, the court below proceeded to state that by considering the fact that he was facing trial for five years, a lenient view can be taken. This reasoning in support of the Crl.R.P.591/04 ## Page numbers sentence imposed is, by itself, contrary to the sentencing policy to be adopted in such matters. The sentence imposed by the trial court has been confirmed by the court of session. There is no ground to interfere with that, at any rate, in favour of the accused. 21. It is quite intriguing that while going by the legal evidence on record, the charge ought to have been, apart from Section 452, either of offences punishable under Section 511 read with Section 376 or of offences punishable under Section 377, the final report was drawn alleging the commission of offences punishable only under Section 354 apart from Section 452. This prompted me to look into the police papers also, notwithstanding the fact that no contradictions are marked while examining the witnesses, particularly PW1 and PW2. When the victim, a mentally challenged female of 22 years, has given clear evidence of assault and such invasion to her person as would constitute ingredients of offences punishable under Section 511 read with Section 376 or under Section 377, the scales of justice were, obviously, not properly settled in the case in hand. The F.I. Crl.R.P.591/04 ## Page numbers Statement tendered by PW1 was recorded on 20.6.1996. The report was given to the court on 21.6.2006. In that F.I. Statement, specific statements were made by the informant about the acts attributed to the accused, disclosing commission of offences punishable under Section 511 read with Section 376 or under Section 377. However, even before recording the statement of the victim, the mother is again questioned on 21.6.1996 and a statement is recorded, excluding relevant allegations, thereby putting the ingredients to confine to Section 354 IPC. The statements of the neighbours are also recorded. Thereafter, the victim's version is also recorded on 22.6.1996 as if there is no allegation beyond Section 354 IPC in so far as they related to the commission of offences affecting the human body. 22. The criminal justice delivery system envisaged by the Constitution has primarily a protective component in so far as law abiding citizens are concerned. They include the victims also. The suffering of the victim owing to the commission of a crime triggers the executive limb of the State to look for the wrong doer and bring him to trial in accordance with law. The Crl.R.P.591/04 ## Page numbers investigating limb of the State is intended to achieve the fundamental object of reaching at the accused by the proper mode of investigation in a truthful and transparent manner and to place the entire accusation against that person before the competent court empowered to try that person for the offence alleged. The offence is to be identified by the ingredients noticed as the commissions and omissions which result in the crime. Once those ingredients exist, it is not for the investigating officer or the investigating agency to take another view for itself, by which process, the accused would not have to stand trial for the offences committed by him. If the entire facts and materials disclose the commission of a particular offence, it may, in some cases, also disclose commission of other offences. It is not for the investigator or the investigating agency to choose the lesser among the offences while laying the final report before the court. It will only aid in promoting wrong and in helping out the accused and would also tend to show that the investigation was neither transparent nor free from colourable and corrupt exercises in favour of the accused and against the interest of the State, the Public, the victim and the judicial process as such. Crl.R.P.591/04 ## Page numbers The prosecuting agency, including the Public Prosecutor has the authority and duty to ensure that the trial does not got misdirected. Trial means trial of a person in relation to the accusation of commission of an offence. The prosecuting agency or prosecutor is, therefore, duty bound to ensure that the final report is placed in such manner that it does not delude the proper attention of the court as is required in terms of the Constitution and the Laws. The adjudicator in criminal court cannot turn out to be the prosecutor or the investigator. But, it is within the zone of powers and jurisdiction of the court to ensure that a person brought before it for trial faces a trial for the offences alleged to have been committed and in such process, the court has to ensure that the accusations are appropriately laid and charge drawn up, to have the accused tried for the acts attributed to him, which may constitute the offences. The acceptability or not, of the materials, and the final verdict as to what offence, if at all, has been committed and if so, as to what shall be the consequence and sufferings are matters for the judiciary and not for the investigator or the prosecuting agency. The vigilance of all the three has necessarily be put to ensure Crl.R.P.591/04 ## Page numbers that justice in accordance with law is meted out, not only to the accused, but to the victim and the Republican State in terms of the Constitution and the Laws. That is a guarantee that We, The People, have given into ourselves. When police papers are not drawn up with this in mind, it tends to impair the very confidence in the edifice of the justice delivery system. 23. The observations in the preceding paragraphs are relevant to the facts of the case in hand, in which, a hapless victim, a 22 year old female, mentally challenged to some extent, has not apparently got true and complete justice in a case of proven invasion on her. The investigation was obviously smothered to lay charge only of a lesser offence. The investigating and the prosecuting agencies and the courts have failed to discharge their respective constitutional obligations to the contextually needed extent. However, at this distance of time, with only the revision of accused in had, the case has to end. Crl.R.P.591/04 ## Page numbers In the result, the conviction and sentence are confirmed and revision is dismissed. The appropriate court shall take prompt steps to execute the sentence. Sd/- THOTTATHIL B. RADHAKRISHNAN, Judge. kkb.