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2013 DIGILAW 616 (KER)

Manojan v. State of Kerala

2013-07-18

P.BHAVADASAN

body2013
JUDGMENT : P. Bhavadasan, J. 1. The accused in this case was prosecuted for the offence punishable u/s 376 of IPC initially along with another accused also who during the pendency of the proceedings before this Court died. Therefore, the first accused alone stood trial. He was found guilty of the offence u/s 376 and he was sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 25,000/- in default of payment of which he had to suffer rigorous imprisonment for a further period of six months. PW 1 is the victim in this case and PW 2 is her mother. According to the prosecution allegation, while the victim was studying in the 6th standard, on a Friday, the first accused is alleged to have caught hold of her and ravished her. It is further alleged that this sexual assault was repeated on several subsequent occasions taking the victim to various places. The victim would also say that when she was studying in the 7th standard, on a particular day she and her friend Mufeedha while returning from school had gone to the house of one Ahammed, to take water. Mufeedha left the house after taking water and the victim remained there. The allegation is that the second accused who is no more, ravished her. He too is alleged to have repeated the acts on several subsequent occasions. Ultimately, when the victim felt severe abdominal pain, she conveyed the news to her mother. 2. PW 1 laid Ext. P1, First Information Statement. That was recorded by PW 12 who registered crime as per Ext. P1 (a) FIR. Investigation was taken over by PW 13. He prepared scene mahazars of the places where the incidents were alleged to have taken place. He had the victim sent for medical examination. PW 8, the doctor examined PW 1 and issued Ext. P7 certificate. PW 13 collected the extract of the school register from the school where the victim had studied last. He recorded statements of witnesses, completed investigation and laid charge before the Court. 3. The Court before which the charge 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, Kozhikode. He recorded statements of witnesses, completed investigation and laid charge before the Court. 3. The Court before which the charge 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, Kozhikode. The said Court made over the case to Additional District and Sessions Court, Fast Track (Ad Hoc-I), Kozhikode for trial and disposal. 4. The said Court on receipt of records and on appearance of the first accused, framed charges for the offence punishable u/s 376 of IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 13 and had Exts. P1 to P14 marked. 5. After the close of the prosecution evidence, the accused was questioned u/s 313 Cr.P.C.. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He denied of having committed any act as alleged. He also stated that there was exchange of words between him and PW 2 which made PW 2 bitter towards him and that in order to wreak vengeance PW 1 has been utilized to foist a false case on him. He pointed out that he had not even touched the little girl at any point of time. Finding that the accused could not be acquitted u/s 232 of Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. 6. The Trial Court mainly relying upon the evidence of PW 1 coupled with the evidence of the doctor namely PW 8 and Ext. P7, found that the offence has been established as against the first accused. Therefore, convicted and sentenced him as already mentioned. 7. The accused has preferred this appeal from jail. Smt. M.R. Jayalatha was appointed as State Brief to appear on behalf of the appellant. In her well prepared and well presented arguments, the learned counsel for the appellant appointed as State Brief pointed out that the Court below has omitted to note certain vital aspects which would make the version given by PW 1 open to serious doubt and it could not be said that the evidence of PW 1 is cogent and convincing enough to base a conviction on the basis of her testimony alone. The learned counsel went on to point out that a reading of the evidence of PW 1 would show that there is absolutely no similarity in the version given by PW 1 with that narrated in Ext P1 and a totally different story is put forward at the time of evidence. PW 13, who had admittedly questioned PW 1 later in his version has stated that many of the statements made by PW 1 do not find a place in Section 161 statement given by her. The learned counsel went on to point out that these omissions, contradictions and inconsistencies are on material aspects of the case which would make the evidence of PW 1 extremely vulnerable and it will be hazardous to venture a decision in the basis of her evidence alone. The learned counsel also pointed out that there is no proper evidence to show the date of birth of the victim and the evidence of PW 2 is of no help. If the evidence of PW 1 is open to serious doubt, then except for the medical evidence which says that the victim has been subjected to sexual intercourse, there is no evidence to connect the accused at all. 8. Drawing attention to the testimony of PW 1, it is pointed out by the learned counsel for the appellant that going by her evidence in Court, the first incident is committed by Ahammed who is no more and later on the appellant committed the acts. But it is quite contrary to the statement in Ext. P1 where the first accused is attributed as the first aggressor. Apart from that it is also pointed out that there is evidence in this case to show that PW 1 was a mentally retarded person and that aspect has not been kept in mind by the lower Court. Further, the evidence of PW 1 shows that she was instructed to submit as told by her mother and as spoken to by the accused, her mother had an axe to grind against the accused. Whatever that be, according to the learned counsel, it is not possible in the case on hand to rely on the evidence of PW 1 alone and to hold the accused guilty. The conviction and sentence, according to the learned counsel, cannot stand. 9. Whatever that be, according to the learned counsel, it is not possible in the case on hand to rely on the evidence of PW 1 alone and to hold the accused guilty. The conviction and sentence, according to the learned counsel, cannot stand. 9. The learned Public Prosecutor on the other hand contended that the Court below has analysed the evidence of PW 1 in considerable detail and has found it to be acceptable. According to the learned Public Prosecutor, there is no reason as to why PW 1 should falsely implicate the accused. Moreover, it is contended that it is too difficult and improbable to believe that the mother would utilize her own daughter to wreak vengeance against the accused, especially, considering the nature of the allegations. The evidence furnished by PW 8 coupled with Ext. P7 would show that the victim was subjected to sexual intercourse. According to the learned Public Prosecutor, the Court below which has the opportunity to watch the demeanour of the witnesses, has chosen to accept the evidence of PW 1 and there is no reason as to why this Court should take a different view. Accordingly, it is contended that conviction and sentence have only to stand. 10. As is the usual case, here too, the evidence regarding the actual incident is confined to the testimony of PW 1 who was a minor at the relevant time. Going by the First Information Statement given by the victim, as rightly pointed out by the learned counsel for the appellant, the first incident is said to have been committed by the present appellant. That occurs while the victim was studying in the 6th standard. The second accused who is no more comes in picture only when she is in the 7th standard. Most of the aggressive acts are attributed to the appellant in Ext. P1. As rightly pointed out by the learned counsel for the appellant when the testimony of PW 1 is scrutinised, an entirely different picture emerges. Going by the testimony of PW 1, it is clear that the first act of sexual assault was committed by the second accused and it was thereafter that the first accused enters in arena. Apart from this reversal of role and inconsistencies in the time and date of the first incident, there are other inconsistencies also which will be referred to later. 11. Apart from this reversal of role and inconsistencies in the time and date of the first incident, there are other inconsistencies also which will be referred to later. 11. As already stated, the evidence in the case regarding the incident remains confined to PW 1. PW 1 would say that it was the second accused who had taken her to his house and showed her CD. Thereafter, she was given water to drink which made her drowsy and she does not remember what transpired thereafter. Later when water was sprinkled on her face, she woke up and then found that she had been ravished. When she came out, her case is that she happened to see the present appellant then it was the second accused who is no more, who asked her to yield to the desire of the first accused also. The narration of the incident by PW 1, at the time of evidence, is entirely different from what is stated in Ext. P1 She would say that thereafter she was taken to the house of one Abdullah by the appellant and ravished. She would at the time of evidence say that the accused also committed the act in the bathroom of the school where she was taken by her close friend Mufeedha. She is definite while giving evidence in the Court that she had conveyed the information to her teachers who initially did not give much significance to the same. When she confided in her friend Mufeedha, she threatened her that she would say that it was the victim who had taken Mufeedha with her. Further, while giving evidence in Court, PW 1 come forward with a case that the accused used to carry a knife with which he used to threaten the victim. At the time of giving evidence in Court, she goes further and says that even the accused showed her CD which is said to have been given to him by the second accused. If one has to believe the version given by PW 1, even Mufeedha was ravished, 12. It is hero one has to notice that the statement in Ext. P1, First Information Statement. In Ext. P1, most of the incidents are said to have been taken place in the house of one Kunjatta. If one has to believe the version given by PW 1, even Mufeedha was ravished, 12. It is hero one has to notice that the statement in Ext. P1, First Information Statement. In Ext. P1, most of the incidents are said to have been taken place in the house of one Kunjatta. While at the time of giving evidence, PW 1 gives a complete go-bye to that version and confined the acts to the house of Abdullah and another house of Latheef which is under construction.' She has no case that she was ever ravished in the house of Kunjatta. Further, though in Ext. P1 it is stated that she was ravished in the bathroom of the house of Kunjatta, at the time of evidence she shifted it to the bathroom of the school. She never had a case that the accused had ever threatened her with a knife which she alleged that he always used to carry. 13. There is some evidence to show that the victim namely PW 1 is slightly mentally deficient But the exact percentage of her mental deficiency is not in evidence. There is no help received in this regard from PW 8, the doctor who had examined the victim and who had prepared Ext. P7 certificate. Of course, PW 8, the doctor who had examined the victim and prepared Ext. P7 certificate does say that on the basis of his findings that the victim was subjected to sexual intercourse. The prosecution remains satisfied by examining PW 5, the Educational Officer who prove Ext. P4 certificate which shows that the victim was receiving allowance for mentally retarded children. 14. It was contended on behalf of the appellant that the Court below under these circumstances ought to have conducted the voir dire test and the testimony taken without conducting the said test cannot be accepted at all. 15. voir dire test is conducted by the Court only to ensure that the witness is capable of understanding nature of questions put to him/her and is able to give rational answers. The mere fact that the voir dire test is not conducted does not affect the credibility of the evidence furnished by the witness. If the Court, after taking evidence, finds that the witness is capable of giving cogent, convincing and rational answers, then the witness is a competent witness u/s 118 of the Indian Evidence Act. The mere fact that the voir dire test is not conducted does not affect the credibility of the evidence furnished by the witness. If the Court, after taking evidence, finds that the witness is capable of giving cogent, convincing and rational answers, then the witness is a competent witness u/s 118 of the Indian Evidence Act. Merely because of voir dire test is not conducted, it does not take away the probative value of the evidence furnished by such a witness. 16. Whatever that be, as already stated, the solitary evidence regarding the incident is the testimony given by PW 1. When one goes through the evidence of PW 13, the Investigating Officer, it can be seen that most of the statements made by PW 1 does not find a place in the statement given to him during investigation. It is also significant to notice that all those statements which are conspicuously absent in Section 161 statement are regarding material aspects of the case. 17. PW 13 says that when he questioned PW 1, she had not stated that any incident had happened in the bathroom of the school. He also stated that PW 1 had not told him that the accused had threatened her with the knife. She had also not stated about Mufeedha taking her to the school bathroom. Thus, it could be seen that the omissions actually amounts to material contradictions making the evidence of PW 1 vulnerable. 18. It could not be said that the evidence in the case on hand, furnished by PW 1 is convincing, cogent, and credit worthy so as to safely base a conviction on the basis of her testimony alone. Of course, the Court is not forgetting the fact that there is medical evidence to show that she had been ravished. Then, the question is whether the accused can be held responsible for the same. In the light of the fact that there is considerable variation between the narration of the incident as contained in Ext. P1 and the testimony given by PW 1 at the time of evidence coupled with the fact that there are contradictions, inconsistencies and omissions in plenty regarding the material aspects with reference to her previous statement etc., it may not be safe to rely on her evidence and come to the conclusion that the accused had ravished her. 19. P1 and the testimony given by PW 1 at the time of evidence coupled with the fact that there are contradictions, inconsistencies and omissions in plenty regarding the material aspects with reference to her previous statement etc., it may not be safe to rely on her evidence and come to the conclusion that the accused had ravished her. 19. If the evidence of PW 1 is to be eschewed, then there is no other evidence. The evidence of PW 2 was hearsay and her evidence is confined to what the victim told her about the incident. She of course does say that she had gone to the school hearing the news that spread in the school about the violation of the body of PW 1. But there she does not get support from the Head Master of the school when he is examined as PW 9. PW 9, the Head Master of the school only says that the issue that was agitated in the school was only regarding giving of toffee and nothing else. 20. Thus viewed from that angle also, the prosecution derives little support from PW2 and PW9. For the above reasons, this Court is unable to accept the findings of the Court below that the evidence of PW 1 when taken along with PW 8 are sufficient to warrant a conviction. The evidence of PW 1 suffers from serious infirmities, it will not be safe to rely on her solitary evidence and come to the conclusion that the acts have been committed by the accused. In the result, this appeal is allowed. Conviction and Sentence passed by the Court below for the offence punishable u/s 376 of the Indian Penal Code are set aside and it is held that the accused shall stand acquitted of the said charge. If he is in custody, he shall be released forthwith otherwise his bail bond shall stand cancelled. He is set at liberty. If he has paid any fine amount, the same shall be refunded to him.