Uthaman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 29TH DAY OF AUGUST 2013/7TH BHADRA, 1935** ## **CRL.A.No. 906 of 2010 (C)** **------------------------------------[SESSIONS CASE NO. 515/2006 DTD. 23/03/2010 OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC) FAST TRACK- COURT-I, PATHANAMTHITTA]** **................** **APPELLANT/ACCUSED:** **----------------------------------** **UTHAMAN, S/O. NANU PILLAI, KASAVANKAMALAYIL HOUSE, INJALBHAGAM MURI, KAVIYOOR VILLAGE.** **BY ADV. SRI.S.PRAKASH.** **RESPONDENT/COMPLAINANT:** **--------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 906 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of August, 2013 ## **J U D G M E N T** The accused in this case was prosecuted for the offence punishable under Section 376 of the Indian Penal Code. He was found guilty and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of 10,000/-₹ with a default clause of one year. 2. PW3, who, according to the prosecution, is a mentally retarded girl, is the victim and PW1 is her mother. PW1 has two other children, a son and another daughter elder to PW3. The sister of PW3 is married and is staying in her matrimonial house. One month prior to the incident, PW1, the mother of the victim had gone for a job at Trichur and she was there at the relevant time. When she goes for work, she usually entrusts her mentally retarded child with her elder sister, Thankamony. On 13.08.2005, it is alleged that the father of the victim brought her back home from the ## **Crl.A. No. 906 of 2010** **-2-** house of Thankamony for collecting the amount due for the handicapped persons given by the Government. On 13.08.2005, the amount could not be collected and it was received only on 16.08.2005. On 20.08.2005, when PW1 reached home, she came to know that her daughter, PW3 has been sexually assaulted. She enquired with PW3 who through gestures and other means, conveyed that she had been ravished on 13.08.2005 by about 2 O'Clock in the noon. When she tried to raise alarm, it is alleged that the accused closed her mouth and threatened her with dire consequences, if she revealed the incident to anybody. PW1 laid Ext.P1 First Information Statement on 23.08.2005. PW11 recorded Ext.P1, First Information Statement furnished by PW1 and registered crime as per Ext.P7 FIR. Investigation was taken over by PW12. He had the victim examined by PW7 and obtained Ext.P4, certificate. He prepared Ext.P6, scene mahazar and seized MOs 1 and 2, the clothes alleged to have been worn by the victim at the ## **Crl.A. No. 906 of 2010** **-3-** relevant time. The same was sent for forensic examination and Ext.P9 report was obtained. He recorded statement of witnesses, had the accused arrested and subjected him to potency test and completed a good portion of the investigation. His successor in charge, PW13 verified the record and laid charge before the court. 3. The court before which the final report was laid, took cognizance of the offence. Finding that the offence is exclusively triable by a Court of Sessions, committed the case to Sessions Court, Pathanamthitta under Section 209 Cr.P.C. The said court made over the case to Additional District and Sessions Court (Ad-hoc) Fast Track-I, Pathanamthitta for trial and disposal. 4. The latter court on receipt of records and appearance of the accused, framed charges for the offence punishable under Section 376 of IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 14 examined and had ## **Crl.A. No. 906 of 2010** **-4-** Exts. P1 to P15 marked. The defence had Ext.D1 marked. MOs 1 and 2 were got identified and marked. 5. 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 also stated that PWs 1 and 3 are his neighbours and Devakiamma was his relative. She is bedridden with paralysis. He claimed that he and the others were taking care of the said lady and that PW3 used to occasionally come to that house. It is also stated by him that PW3 had physical relationship with several other persons and when that became public, he warned PW3 not to come to Devekiamma's house. That was conveyed by PW3 to PW1 who picked up a quarrel with the accused and threatened that he would be taken to court. He maintained that he is innocent. ## **Crl.A. No. 906 of 2010** **-5-** 6. On 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 adduce no evidence. The court below mainly relying on the evidence of PWs 3, 4 and 5 and also PW7 came to the conclusion that the offence has been proved against the accused and found him guilty. Conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal. 7. The learned counsel appearing for the appellant contended that the court below has not applied its mind to the various aspects of the case and has acted in a mechanical manner in accepting the evidence of PW3 as its stands, without subjecting it to careful and critical scrutiny. Had the court below analyzed the evidence of PW3 in the light of the other items of evidence in the case, it could be seen that her evidence is not above board and it is open to serious doubt. Even going by the evidence of PWs 1, 4 and 5, it was one Ambili who had the first occasion to know ## **Crl.A. No. 906 of 2010** **-6-** about the incident and who had conveyed the information to PW1. For reasons best known to the prosecution, she was neither questioned by the Investigating Officer nor examined before court. That, according to the learned counsel for the appellant, was deliberate because if the said Ambili has been examined, the truth would have come out. According to the learned counsel for the appellant, the said Ambili was the best person to speak about the incident and her nonexamination should prove fatal to the prosecution. It was pointed out by the learned counsel for the appellant that even going by the prosecution case, the father of PW3 had brought PW3 to the house on 13.08.2005 for the purpose of collecting pensionary benefits due to the handicapped PW3 and the amount could be collected only on 16.08.2005. The incident is alleged to have taken place on 13.08.2005 and there is no case for the prosecution that the father was not at home either after the incident or at the time when PW1 had come home. The father is also not examined in this ## **Crl.A. No. 906 of 2010** **-7-** case for the reason best known to the prosecution. Referring to the evidence of PW1, it is pointed out that PW1 had admitted that there was consultation made with the father of the victim but however it seems strange that he did not accompany PW1 to the Police Station to lay the FIS. This also should be viewed in suspicion. It was then contended that the incident was on 13.08.2005 and the FIS was lodged only on 23.08.2005. The considerable delay in lodging the FIS is not satisfactorily explained and that would show the hollowness of the prosecution case. It is true that PW1 has stated that she had come home late by two or three days to get the entire details from her daughter PW3, who was mentally retarded and who had difficulty in communicating the matter to others. Relying on the decision reported in **State of Karnataka v. Mapilla P.P. Soopi** [(2003) 8 SCC 202] it was contended that such delay should be viewed seriously and if that be so, the prosecution case has to fail. Referring to the evidence of PW3, it is pointed out that on a ## **Crl.A. No. 906 of 2010** **-8-** reading of her testimony, it can be seen that she narrates that, a portion of the incident that taken place in the toilet of the house which is conspicuously absent in Ext.P1, First Information Statement, and no toilet is shown in the scene mahazar prepared by PW12. That makes the evidence of PW1 extremely vulnerable and this aspect has been omitted to be noticed by the court below. 8. Relying on the decision reported in **Subhash Chand v. State of Rajasthan** [JT 2001 (8) SC 505], it was contended that the circumstances established in this case does not beyond reasonable doubt establishes that the accused had committed the offence. It was contended that at best the prosecution has been able to create a suspicion regarding the involvement of the accused, but that is far from sufficient for holding him guilty of the offence. 9. The learned counsel appearing for the appellant then contended that according to PW3, she was threatened with dire consequences by showing a knife, but surprisingly ## **Crl.A. No. 906 of 2010** **-9-** enough, the knife so used has not been recovered. Relying on the decision reported in **State of Rajasthan v. Kishanlal** [(2002) 5 SC 424] the learned counsel contended that non recovery of knife which is said to have been used for threatening PW3 with dire consequences should also be viewed seriously and that also creates dent in the prosecution version of the incident. It was finally contended that PW3's testimony cannot be accepted for the simple reason that most of the answers elicited in chief examination are based on leading questions. These aspects of the evidence have not been considered in proper perspective by the court below and that has resulted in a wrong conviction being entered into. Accordingly, it is contended that conviction and sentence cannot stand. 10. The learned Public Prosecutor on the other hand contended that there is no merit in any of the contention raised by the learned counsel for the appellant. The non examination of Ambili and the father of the victim is of no ## **Crl.A. No. 906 of 2010** **-10-** consequences and the court has to see whether the evidence available on record is sufficient to prove the case against the accused and not as to the quantity of evidence adduced. If the quality of evidence given by PWs 1, 3, 4 and 5 is sufficient to show that the incident had occurred, then the non examination of the father of the victim and Ambili who may have a role in others coming to know about the incident subsequently, is of no significance or consequence. The court below has analyzed the evidence of PWs 1, 3, 4 and 5 and has come to the conclusion that their evidence stand scrutiny and the incident stands proved. May be that, Ambili had seen the accused coming out and also the victim coming out of the house of DevakiAmma. But the non examination of Ambili has no relevance as far as the appreciation of the evidence of PWs 3, 4 and 5 is concerned. It is significant to notice, according to the learned Public Prosecutor, that no suggestion is made to PWs 4 and 5 as to why they should falsely implicate the accused. Though a ## **Crl.A. No. 906 of 2010** **-11-** motive is suggested that there is rivalry between PW1 and the accused that is denied by PW3 . There is no reason as to why PW3 should falsely implicate the accused. 11. As far as the delay is concerned, the learned Public Prosecutor contended that PW1 reached home only on 25.08.2005 from her place of employment in the night and she had to struggle to get the actual incident narrated by PW3 who is a mentally retarded child and who had difficulty in communicating with others. It is significant to notice, according to the learned Public Prosecutor, that soon after the incident was fully narrated to PW1, she consulted her husband and thereafter laid Ext.P1, First Information Statement. Viewed in the light of the testimony furnished by PW1, it could not be said that there is any delay in lodging the FIS. The contention that the prosecution story has to be viewed in suspicion for the delay in lodging the FIS is only to be rejected. ## **Crl.A. No. 906 of 2010** **-12-** 12. As regards the absence of mention of kitchen in the plan, the learned Public Prosecutor pointed out that, that is of little relevance. The prosecution case is, as is spoken to by PW3, that the incident of rape was committed in the kitchen and the prosecution stands by it. May be that, PW3 has stated that during the course of the acts committed by the accused, she was also taken to the toilet. But the testimony of PW3 does not show that the act of sexual assault was committed in a toilet. Her evidence is to the effect that it was committed in the kitchen itself. Therefore, that argument also cannot not stand. Finally, it is contended that it is too imprudent on the part of the court to acquit the accused on the ground that the knife which was used for threatening PW3 has not been recovered by the Investigating Officer. Even assuming that there is such a flaw in the investigation, the learned Public Prosecutor went on to point out that such flaw in investigation shall not be a ground to acquit the accused where the other evidence ## **Crl.A. No. 906 of 2010** **-13-** available on record is sufficient to establish the complicity of the accused. 13. The learned Public Prosecutor went on to contend that the court below which had the occasion to watch the demeanour of witnesses has chosen to accept the evidence of PWs 3, 4 and 5. Unless it is shown that the findings are perverse or contrary to the evidence on record, interference in appeal is not warranted. 14. Even though, it was stated that Ext.P3 certificate was issued by PW6 who is only a paediatrician showing that the victim was mentally retarded and Ext.P3 was not a competent certificate, there was no suggestion to PW6 that he was incompetent to assess the mental capacity of the victim. It is true that the certificate is of the year 2000. PW1 has also spoken to the effect that the child is mentally retarded and so also PW4, their neighbour. The versions of these witnesses regarding the mental capacity of the victim is not challenged seriously. Therefore, even assuming that ## **Crl.A. No. 906 of 2010** **-14-** there is any infirmities in the certificate given by PW6, that does not enure to the benefit of the accused and that does not mean that PW3 was in full possession of her mental faculties. There is no reason to reject Ext.P3, certificate. True, a better method could have been adopted by the court below or the court below itself could have observed the demeanour of the witness and also if, it is felt that, there was any mental retardation, it would have been only appropriate to conduct a voire dire test. The mere fact that these steps have not been undertaken by the court below, is not a reason to suspect the mental capacity of the victim. 15. Even though, the accused has a case that Devakiamma is a paralytic and is bed ridden and she is looked after by him except for a vague suggestion, there is no other evidence in that regard. The consistent prosecution case is that usually when none is at home, PW3 goes and sit in the varandha of the house of Devakiamma. This is spoken to by most of the prosecution witnesses also. ## **Crl.A. No. 906 of 2010** **-15-** On the date of incident also, the allegation is that when she was sitting in the varandha of the house of Devakiamma, the accused came to the house, dragged her inside and committed rape inside the kitchen. 16. As regards the actual incident, there is the evidence of PW3 only. From the evidence adduced, it is seen that PW3 is a mentally retarded lady. The nature of answers given by her during her examination it is also revealed that she is not in full possession of her mental faculties. As already noticed, it would have been only appropriate for the court to ensure that the victim was capable of giving proper answers to the question put to her and is capable of understanding the consequences of the answers given by her. However, a reading of her evidence shows that on the date of incident, the accused had pulled her inside the house, removed her clothes and committed the objectionable act. She narrates in detail what actually transpired and how the act was done. It is unnecessary to **-16-** ## **Crl.A. No. 906 of 2010** refer to those aspects in this order. She would also say that to ensure that even if she tried to raise her voice, it could not heard by others because cloth was stuffed into her mouth. Her further evidence is that she was threatened with dire consequences by the accused using a knife. Even though some of the answers given by the victim is to leading questions put to her, that by itself is not sufficient to discard the evidence of PW3 in toto. Even though PW3 was cross examined at length, there is no contradiction or inconsistency that could be brought out regarding the actual incident, except for the minor defect that there is no case initially for the prosecution that PW3 was taken to the toilet. PW3, at the time of evidence, would say that during the process of taking her to kitchen and before committing the act, she was taken to the toilet also. The mere fact that no toilet is shown in the scene mahazar by itself is not a ground to doubt the version of PW3 especially, where the prosecution case itself is that the rape was committed inside ## **Crl.A. No. 906 of 2010** **-17-** the kitchen which is spoken to by PW3 also. The evidence of PWs 4 and 5 was found convincing enough by the court below. They two are neighbours of the victim. Among them, PW5 is the daughter of PW4. PW4 would say that PW3 is a mentally retarded child and she is incapable of understanding things in the proper form. She also would say that PW1 goes for work outside, PW3 used to be taken to the house of sister of PW1. She is unable to recollect the exact date on which PW3 was brought home by the father of the victim for collecting pension. She would say that on the date of incident, Jaya, who is examined as PW2 and Ambili had come to her house. A short while after leaving her house, according to PW4, she was called by the said Jaya and she was asked to go over to the house of Devakiamma. She had gone along with PW5. When she reached there, she would say that she saw the victim with her clothes kept close to her body and seeing her, it is stated by PW4 that she came and hugged her and cried aloud. PW4 would say ## **Crl.A. No. 906 of 2010** **-18-** that she initially thought PW3 had got frightened by seeing something. But then she happened to see the chappal of the accused on the steps. Then she says that when she asked what had transpired, the victim told her about the incident. 17. PW5, as already stated, is the daughter of PW4. She also says that she had gone along with her mother to the house of the victim and she almost gives similar narration. 18. There is no suggestion to PWs 4 and 5 as to why they should falsely implicate the accused. Even though, they were cross examined at length, nothing could be brought out to show that they had any specific motive to falsely implicate the accused or they were speaking falsehood. The court below has chosen to accept the evidence of PWs 4 and 5. There is no reason shown before this Court as to why their evidence should not be accepted. ## **Crl.A. No. 906 of 2010** **-19-** 19. Apart from the evidence of PWs 4 and 5 there is the evidence of PW7, the doctor who had examined the victim and who had issue Ext.P4 certificate. He had examined the victim on 23.08.2005. Ext.P4 is the certificate issued by him. His evidence shows that he could not find any external injuries but he found the hymen ruptured and vagina admitted of two fingers. His opinion was that there was evidence of genital penetration. He also says that the victim was mentally retarded. Even though the doctor was cross examined, there is nothing to show that the opinion given by him at the time of evidence has no basis. It is clear that the evidence given by PW7 regarding the penetration is based on his observation and entries made in Ext.P4 certificate. 20. Coming to the contention based on the delay in lodging the FIS, it is no doubt true in the decision reported in **State of Karnataka v. Mapilla P.P. Soopi** [(2003) 8 SCC 202] the delay of one day was considered to be fatal. But it ## **Crl.A. No. 906 of 2010** **-20-** is well settled by now that there is no universal principle regarding the delay in lodging the FIS and each case will have to be appreciated in the facts and circumstances of the said case. Viewed from that angle, even assuming that the father must be credited with the knowledge of the incident and he has not laid the FIS, the mother reached the house only on 20.08.2005 and soon thereafter learning about the incident from her daughter, she laid the FIS. It could not be said in the facts and circumstances of the case that there was any unjustifiable delay in lodging the FIS and there is nothing to show that the delay was deliberate or with oblique motive to falsely implicate the accused. 21. The contention was raised on the basis of a decision reported in **State of Rajasthan v. Kishanlal** [(2002) 5 SC 424] about the non recovery of the knife. In the said decision, it was held as follows: “Further, it was contended by the prosecution that the respondent had carried a knife with him **-21-** ## **Crl.A. No. 906 of 2010** and had threatened the prosecutrix with the knife and, therefore, on account of fear, she could not raise an alarm or resist the respondent. It is indeed surprising that the knife has not been exhibited in the trial, nor does it appear to have been seized in the course of investigation. The non-seizure of the knife raises a serious suspicion about the truthfulness of the prosecution version that the respondent had sexual intercourse with the prosecutrix under threat.” 22. In the above decision, the evidence on record showed that the probability of sexual intercourse between the accused and the victim concerned could be with consent. In the said context, aid was also taken note of the fact that the knife which is alleged to have been used for threatening the victim was not recovered and another circumstance which would probably falsify the prosecution case. ## **Crl.A. No. 906 of 2010** **-22-** 23. In the case on hand, it is true that at the time of questioning under Section 313 Cr.P.C., the accused had attributed unchastity to the lady. There is no suggestion to any of the witnesses either to PW4 or PW5 that the victim was prone to sexual desires. Moreover, the observation in the above decision is that since the weapon has not been recovered, it casts doubt about the truthfulness of the prosecution case. Like in all cases, here too, the necessity to recover the weapon depends on the facts and circumstance of each case. In the light of the evidence adduced in this case, it is irrelevant whether the knife which is alleged to have been used by the accused for threatening the victim was recovered or not. It is significant to notice that PW3 has stated that her mouth was stuffed with cloth when she tried to cry aloud. This aspect in the evidence of PW3 is not seen challenged in the cross examination. 24. Reliance was placed on the decision reported in Subhash Chand v. State of Rajasthan [JT 2001 (8) SC **-23-** ## **Crl.A. No. 906 of 2010** ## 505], wherein it was observed as follows: “24. Thus, none of the pieces of evidence relied on as incriminating, by the trial court and the High Court, can be treated as incriminating pieces of circumstantial evidence against the accused. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal Dixit's cae (supra), this Court cautioned-“human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions”. This Court has held time and again that between may be true and must be true, there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict.” ## **Crl.A. No. 906 of 2010** **-24-** 25. It is no doubt true that in a case based on circumstantial evidence, the principle is that every circumstance be established and the circumstances so established should form a complete chain so as to leave one in no doubt that the offence must have been committed by the accused and should be inconsistent with any hypothesis of his innocence. It is difficult to understand how the principle laid in the above decision can apply in the facts and circumstances of each case. 26. One has to remember that the offence of rape is often committed in secrecy and never on invitation or in public. The court concerned will have to rely on the evidence furnished by the prosecutrix and will have to weigh that evidence. If the evidence of the prosecutrix is found to be cogent, convincing and credit worthy, there is no reason as to why the conviction should not be based on the same. If on the other hand, the version given by the victim is inherently improbable or testimony given by the prosecutrix ## **Crl.A. No. 906 of 2010** **-25-** is open to serious doubt, then the court may well look for corroboration. In the case on hand, PW3 has given a narration of the incident and there is medical evidence in support of her claim. Further, she gets corroboration at the hands of PWs 4 and 5, at least to a certain extent regarding the actual incident. It could not be said that the case is based on the circumstantial evidence. It could thus be seen that unless one is to find that the evidence of PWs 3, 4 and 5 suffer from serious infirmities or is inherently improbable, there will not be any justification for this Court to discard their evidence. 27. As rightly pointed out by the learned Public Prosecutor, it is the quality of the evidence adduced that matters and the not the quantity. The mere fact that some of the witnesses who could have given useful evidence regarding the incident were not examined does not mean that it should prove fatal. If as a matter of fact, the prosecution case is unfolded by the evidence made ## **Crl.A. No. 906 of 2010** **-26-** available, then there is no justification to reject the prosecution case on the ground that better evidence could have been adduced. 28. The court below which had the occasion to watch the demeanour of witnesses has chosen to accept the evidence of PWs 3, 4 and 5. It is true that the evidence of PW1 as regards the incident, is only that what was conveyed to her by PW3 and others. Her evidence, as regards the incident, may not fall under the category of _res gestea_ evidence. However, except for a vague suggestion that she had animosity with the accused and there is nothing to show as to why she should falsely implicate the accused. 29. The court below has analyzed the evidence in considerable detail and has found that the evidence is sufficient to come to the conclusion that the offence has been made out. It is not shown that the findings are either perverse or not warranted by the evidence on record. ## **Crl.A. No. 906 of 2010** **-27-** 30. The result is that no grounds are made out to interfere with the finding of the court below for the offence under Section 376 of IPC. The conviction has only to stand. 31. What now remains to be considered is the question of sentence. It has to be remembered that the atrocities was committed on a mentally retarded girl who was a helpless victim. The act is a brutal one and the offence is a grave one. In spite of all the above facts and circumstances, the court below has extremely generous in awarding a minimum sentence to the accused. If at all the court was erred, it was erred on the side of leniency. The result is that there are no grounds made out to interfere with the conviction and sentence passed by the court below. This appeal is without any merits and is accordingly dismissed. ## **P.BHAVADASAN JUDGE** ds