Varghese v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 2899 of 2004 (B)** **-------------------------------CRA.224/2001 of ADDL.SESSIONS COURT FAST TRACK-II, ALAPPUZHA SC.343/1999 of ADDL.SESSIONS COURT, ALAPPUZHA** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **VARGHESE, AGED 45 YEARS, S/O. DEVANIA, VELLAPPALLY COLONY, WARD NO.10 ARYAD SOUTH PANCHAYATH, ALAPPUZHA.** **BY ADV. SRI.C.S.MANU** ## **COMPLAINANT(S)/RESPONDENTS/COMPLAINANTS::** **-----------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR** - **HIGH COURT OF KERALA, ERNAKULAM.** **2. CIRCLE INSPECTOR OF POLICE, ALAPPUZHA NORTH POLICE STATION.** - **BY ADV. PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Crl. R.P. No. 2899 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 11[th] day of December, 2012. O R D E R The petitioner is the accused in S.C. No. 343/1999 before the Additional Sessions Judge, Alappuzha. He was prosecuted for offences punishable under Sections 450 and 376 of the Indian Penal Code. The prosecution case as stated in paragraph 2 of the judgment of the Assistant Sessions Judge is as follows: “The prosecution case is that on 20.12.08 at about 4 p.m., the accused with the intention to commit rape on CW2, trespassed into the house of CW1, bearing door No. 420/9 in Ward No. 9 in Ramavarma Colony at Aryad Panchayat, wherein CW1 is residing with his family and committed rape on CW2, a mentally retarded girl aged 17 years, who is the daughter of CW1 and thereby committed the offence punishable under Sections 450 and 376 of IPC.” 2. The prosecution examined PWs 1 to 11 and marked Exts. P1 to P11 as well as MO1. The accused did not adduce any evidence. After considering the evidence of the prosecution, the Assistant Sessions Judge convicted the petitioner and sentenced him as follows: “The accused is sentenced to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 5,000/-, in default to undergo Rigorous Imprisonment for 5 months for the offence committed u/s. 376 IPC and sentenced to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs.3,000/-, in default, to undergo Rigorous Imprisonment for 3 months for the offence committed u/s. 450 IPC. Both sentences are to be run concurrently. If the fine is paid, it would be paid to the victim as compensation. Set off u/s. 428 CrPC. is allowed.” Crl. R.P. No. 2899 of 2004 -: 2 :- The petitioner filed Crl. A. No. 224/2001 before the Additional Sessions Court (Fast Track Court-II), Alappuzha. The Additional Sessions Judge dismissed the appeal confirming both the conviction and the sentence. The petitioner is challenging the judgments of the courts below. 3. According to the petitioner, there is no legal evidence available on record to convict the petitioner. It is submitted that there is no eye witnesses to the incident. The only direct evidence available is that of the alleged victim, namely, PW2. She is admittedly a mentally retarded child although she is 17 years old. She is not competent to give any acceptable evidence of any kind, is the contention raised. Even assuming that she is capable of understanding things at least as a child, her evidence would not inspire confidence in any reasonable person, is his contention. Added to that, the medical evidence also does not support the prosecution case. It is pointed out that the doctor who examined PW2, namely PW4, gave categoric evidence to the effect that there is no clinical evidence of sexual intercourse or not even any injuries in any part of the body of PW2. In the above circumstances, there is absolutely no evidence to prove the offence alleged against the petitioner, is the contention raised. In support of his contentions, the learned counsel for the petitioner relies on the decision of the Supreme Court in **Devinder Singh and others** v. **State of Himachal Preadesh** , AIR 2003 SC 3365 and the decision of the Allahabad High Court in **Bachcha v. State of U.P., 2008 Crl. L.J. 483** . Crl. R.P. No. 2899 of 2004 -: 3 :- 4. On the other hand, the learned Public Prosecutor would contend that the courts below have analyzed the evidence of PW2 in minute detail and have come to the conclusion that notwithstanding the minor discrepancies therein, the evidence of PW2 can be accepted as that of a five year old child. Since there is no apathy towards child witness in criminal prosecutions, the evidence of PW2 as a child witness is sufficient to prove the guilt of the petitioner, is the contention raised. It is further submitted that simply because the doctor stated that there is no clinical evidence to prove the sexual intercourse on PW2, that is not the final word and it has come out in evidence that even without the injuries on the body of PW2 and without clinical evidence regarding sexual intercourse, other evidence available is sufficient to prove that there was sexual intercourse on PW2. It is submitted that the evidence of PW2 itself would go to show that in fact she was subjected to sexual intercourse by the petitioner. Therefore, the learned Public Prosecutor would support the judgments of the courts below. 5. I have considered the rival contentions in detail. 6. I am of opinion that the cross examination of PW2 read with the evidence of that of PW4 would show that it is not safe to convict her on the basis of her evidence alone. Of course, in her chief examination she narrates a story of sexual intercourse in reasonable detail. But the cross examination shows that her evidence cannot be safely relied upon. The cross examination reads thus: Crl. R.P. No. 2899 of 2004 ## -: 4 :- ## Cross: ഇങ�ന� പറയണ� എന� അമ പറഞ�ട�ന� (Q) A. ഉണ�. എന��ന� പറയണ� എന� പഠ�ച�വ�� (Q) A. പഠ�ച�യ�ര�ന�. അമ�� ഈ പപത�വയ�ട� വ$ഷ&� അവ� (Q) A. അനത. അപന( അമയ�� അപ��� �)ട�ല �ര�നത� അമ�� ഇഷ� ആണ�. അപന( അപന �)ട�ല ��ന�� ആഹ�ര� കഴ���നത��� �ഴ�� പറഞ�ട�വ� (Q) A. ഉണ�. അച��� അമയ�� എവപ�ഴ�� �ഴ�� ഉണ���റ�വ� (Q) A. ഉണ�. അമ പറഞത� നക�ണ� ഇയ�ള അങ�ന�നയ�ന� ന3യ�ത� എന� പറയ�കയവ� (Q) A. (She without opening her mouth showed gestures in positive) അനത. ## The evidence of PW4 reads thus: “I am working Lecture in Gynecology in M.C. Alappuzha. On 22.12.1998, I have examined one Jincymol, 17 years, Ramavarma Colony, Aryad. I have noted the child in mentally retarded and non co-operative. In fact, mother told me that menstrualy attained two years back on her last menstrual period was December 1[st] . On examination patient was not pale, pulse 80/minute. Moderately build and nourished, mentally retarded. Local examination no nail marks or teeth marks seen on her face, breast, nipple or thigh clinically. Clinically hymen was intact, vaginal introitus admits only one finger. No external injury or bleedings seen. No evidence of any vaginal infection, pubic hair, vulval swab, vaginal smear taken for chemical examination. Clinically no evidence of sexual intercourse. Final opinion pending chemical examiner's reports. Certificate bears my signature marked as Ext.P2. Victim was brought by WPCC No. 3873 and 4487. Alleged cause is being raped by her uncle on 20.12.98 at about 4. p.m. On attain 17 years old a girl private part is matured. If one giving raped and no resistance, there is no probability of injury on her private parts. If a girl of 17 years had been intercoursed of a male, there is no possibility Crl. R.P. No. 2899 of 2004 -: 5 :- of injury on her private parts. Resistance of a girl depend upon her mental capacity to understand the things. Human spermatozoa above only for two days. No possibility of spermatozoa if victim wash after intercourse, and washing her cloth during chemical examination. Since I have not noted any injury on her private parts and evidence of intercourse. It is not recent to cause injury on hyman if one victim undergone intercourse. ## Cross In medico legal cases accident-cum-injury certificate has got great importance. Is it correct to say that Doctor prepare the same delegates, accurates? Yes. The patient was accompanied by her mother. The alleged cause of injury was stated to me by the mother of the patient. Is it correct to say that you could not made an opinion as to the alleged cause of injury? Yes. Is it correct to say that the patient was not agree for medical examination? Yes. Is it correct to say that stains of spermatozoa and blood will not disappear even after two days? It may not disappear if not washed. Even if washed is it correct to say that the stains of blood or spermatozoa is not disappear after two days? No. If there is no possibility of detains of stains after two days of washing. Cloths were not brought to me for examination. I have not seen the chemical analysis report of vulvals and vaginal smear taken. Did you say that the patient was subjected any sexual molestain or not? I cannot say. ## Re-examination Any injuries on private parts may heel within one or two days. Heeling effected is more than other parts of body. ## Cross with permission. I have not noted any mineral trice on her private parts.” (Underlining supplied) As rightly pointed out by the learned counsel for the petitioner, there is no direct evidence to prove the offence alleged against the petitioner except the abovesaid testimony of PW2 who is a mentally retarded child who herself states that her mother told her to state in court as Crl. R.P. No. 2899 of 2004 -: 6 :- she did in chief examination. Apart from the evidence of PW2, the knowledge of the other witnesses about the incident is only as stated by PW2. Therefore, unless the evidence of PW2 is sufficient enough to prove the guilt of the petitioner beyond a reasonable doubt or her evidence is corroborated in material particulars, the petitioner cannot be convicted on the basis of the evidence of PW2 alone. As is very clear from the evidence of PW2, the evidence given by her does not inspire any confidence in me. Of course, during chief examination, she would state reasonably well about the alleged incident. But, in the cross examination, she frankly admits that her mother had told her to state so in court. In fact, in the cross examination, she has rendered all her evidence in chief examination untrustworthy. I do not think that the petitioner can be convicted of the offence of rape on such totally unrealiable evidence. Added to that, the doctor categorically stated that there is no clinical evidence of intercourse on PW2. She adds that there was no injuries whatsoever on any part of the body of PW2. Of course, PW2 was examined by PW4 two days after the incident. Still, if there were some injuries, there would have been some marks of the same at least. The doctor categorically states that no injuries whatsoever were found in any part of her body. In the above circumstances, I am of opinion that the petitioner is at least entitled to the benefit of doubt. 7. The petitioner cannot be convicted of the offence under Section 450 also since from the evidence of PW3, the Crl. R.P. No. 2899 of 2004 -: 7 :- mother of PW2, it is clear that he entered the house with permission. In fact, PW3's evidence shows that the accused used to visit their house and to take and return cassettes. PW3 states that when she was on her way to the shop, immediately before the alleged incident, she met the petitioner going to her house and on questioning the petitioner told her that he is going into PW3's house to change cassette. That being so, there cannot be an offence of house trespass under Section 450. 8. Of course, the petitioner may be reasonable for doing something to PW2, which was unbecoming of his status as an uncle of a mentally retarded niece for which he may be despised. But, still, that is not sufficient enough to convict the petitioner of the offences under Sections 450 and 376 of the Indian Penal Code. Accordingly, the judgments of the courts below are set aside. The petitioner is acquitted of the offences charged against him, giving him the benefit of doubt. His bail bond is cancelled and he is set at liberty. The Criminal R.P. is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.