Allowed

Sasi v. the State of Kerala

Kerala HC7 Feb 2019CRL.A/471/2014

Case brief

AI extract

What is this about?

This criminal appeal challenged a conviction for rape. The High Court acquitted the appellant, holding that the prosecutrix's testimony was unreliable due to material contradictions in her police statement and that medical evidence of hymen tearing and finger resistance was insufficient to prove penetration.

What did the court decide?

The conviction and sentence under Sec.376 IPC were set aside. The appellant was acquitted and released from custody.

Sasi Vs the State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE A.M.BABU

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THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940

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CRL.A.No. 471 of 2014

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AGAINST THE ORDER/JUDGMENT IN SC 181/2012 of ADDITIONAL DISTRICT COURT & SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN) DATED

14-05-2014

APPELLANT/S:

SASI

S/O.DASAN, PAZHAKKATTIL VEETTIL, ACQUINOS COLLEGE ROAD, EDAKOCHI VILLAGE.

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BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN

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RESPONDENT/S:

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THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.(CRIME NO.1906/2011 OF KOCHI CUSBA POLICE STATION, ERNAKULAM DISTRICT.

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BY ADV. SMT.S.AMBIKA DEVI, SPL. PUBLIC PROSECUTOR FOR OFFENCES AGAINST WOMEN AND CHILDREN

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 3.1.2019, THE COURT ON 07.02.2019 PASSED THE FOLLOWING:

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JUDGMENT

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A.M.BABU, J.

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Appellant was the accused in SC 181/2012 on the file of the court of session, Ernakulam division. He was convicted and sentenced under Sec.376 of the Indian Penal Code(IPC).

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Prosecution case goes as follows: The appellant committed rape on a girl aged below 12 years on two Sundays in the year 2010. The first incident had taken place in a temporary shed where the appellant was residing then with his family. The second incident of rape was committed by the appellant in his newly constructed house. He enticed the child by giving her money for buying confectioneries and toffees. The child divulged the incidents to her class teacher when the latter who found toffees and a confectionery called sip-up in the school bag of the former and questioned her. The class teacher reported to the headmistress to whom too the child disclosed the incidents. The headmistress informed the matter to the child's mother.

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The mother of the child gave the first information statement. It was given and the FIR was registered on 9.9.2011. Investigation was conducted and charge-sheet was filed. The case was committed to the court of session, Ernakulam division. The learned sessions judge made over the case to the additional

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sessions judge who was notified to hold trials of cases relating to atrocities and sexual violence against women and children.

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The learned additional sessions judge, after hearing

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the prosecution and the defence, framed charge against the appellant under Sec.376 (2) (f) of IPC. The appellant pleaded not guilty to the charge and claimed to be tried.

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PWs 1 to 13 were examined and Exts P1 to P10 and Mos 1 and 2 were marked on the side of the prosecution. The learned trial judge on completion of the prosecution evidence examined the appellant under Sec.313 of the Code of Criminal Procedure (Cr.P.C). He denied the incriminating evidence and circumstances against him. The trial court found that the appellant was not entitled to acquittal under Sec.232 of Cr.P.C. Hence he was called upon to enter on his defence and adduce evidence. He examined his wife as DW1.

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The court below found that Sec.376 (2) (f) of IPC was not attracted since the said provision came into effect only on 13.2.2013, that is, only subsequent to the commission of the offence by the appellant. Finding that the appellant committed the offencen of rape, he was convicted under Sec.376 of IPC. He was sentenced to imprisonment for life and a fine of Rs 50,000/-. Sentence in default of payment of fine was also imposed.

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Heard Sri.K.K.Dheerendra Krishnan, the learned

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counsel for the appellant and Smt. S.Ambika Devi, the learned public prosecutor.

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The prosecution contended that the victim girl was under 12 years of age at the time of commission of the crime on her. The learned counsel for the appellant submitted that the prosecution failed to prove the age of the girl to be 12 years or below at the time of the alleged incidents. The prosecution did not produce the extract of the birth register or the extract of the school admission register or any other similar document to prove the age of the victim. What was produced and exhibited was a certificate issued by PW5 who was the headmistress of the school where the victim was a pupil at the time of investigation of the case. The certificate was marked as Ext P2. PW5 prepared and signed Ext P2 and gave it to the investigating officer. The same can be treated only as a statement of PW5 given to the investigating officer under Sec.161 of Cr.P.C, although signed. Ext P2 is therefore hit by Sec.162 of Cr.P.C and is not admissible in evidence. It is liable to be discarded.

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But the prosecution is not without evidence to prove the age of the girl. Her mother who was examined as PW2 spoke that the date of birth of the child was 29.6.1999. Being the mother, PW2 was the person who had direct knowledge about the date of birth of her daughter. The evidence of PW2 that her

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daughter was born on 29.6.1999 was not challenged in crossexamination. Therefore we accept the evidence of PW2 that the girl was born on 29.6.1999. The child was under 12 years of age in 2010 in which year had taken place the alleged incidents of rape. That apart, the age of the victim is not much material in the present case since the appellant has no case of a consensual sexual act.

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The key witness for the prosecution is the prosecutrix herself. She was examined as PW1. She spoke that she used to be called to the house of the appellant by him and that he used to do something dirty. This much evidence of PW1 is not sufficient to find rape since the said evidence does not suggest any sexual intercourse. As Sec.375 of IPC stood before its amendment in 2013, sexual intercourse was necessary to constitute the offence of rape. There was an explanation attached to the unamended Sec.375 IPC. The said explanation provided that penetration was sufficient to constitute the sexual intercourse necessary to the offence of rape. Doing of dirty things spoken to by PW1 does not prove sexual intercourse or penetration.

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PW1 did speak to penetration. She stated that the appellant touched her vagina and caught her breast. She added that the appellant inserted his penis in her vagina. If the

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evidence of PW1 stated above is acceptable, rape on her by the appellant can be taken to be proved.

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But the statements of PW1 in court and mentioned at paragraph 11 of this judgment have been proved to be omissions amounting to contradictions within the meaning of the explanation to 162 of Cr.P.C. Although PW1 asserted that she stated to the police as mentioned above, PW9 who recorded the statement of PW1 was definite that he was not told so by her. PW9 proved the aforesaid omissions. He deposed that he asked PW1 as to what were the dirty things done to her, but she did not divulge. The omissions amounting to contradictions have been on the most material point, namely, rape. Therefore the evidence of PW1 on penetration and touching of her private parts cannot be taken into consideration to convict the appellant.

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The learned additional sessions judge also considered the aforesaid material omissions. But the learned judge accepted the evidence of PW1 on penetration despite the material omissions. The trial judge stated that the omissions occasioned owing to the recording of the statement of PW1 by a male police officer. The omissions proved by the defence cannot be ignored or eschewed in that manner. Nothing is available in the evidence of PW1 to justify the inference the learned additional sessions judge had. There is no hint in the evidence of PW1 or PW9 to

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infer that PW1 had any discomfort while giving statement to a male police officer. No attempt was made by the public prosecutor who conducted the case to elicit in the re-examination of PW1 or in the examination-in-chief or re-examination of PW9 that PW1 had any discomfort while giving statement to a male police officer. We are unable to accept the evidence of PW1 on penetration/sexual intercourse/rape. Her remaining evidence does not suggest commission of rape on her by the appellant.

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PW1 spoke that when she told the appellant about the pain she had at the time of the sexual act, the latter said that what he was doing was good for her. PW1 did not state so to PW9 while giving statement as deposed by PW9. In view of the said evidence of PW9, the assertion of PW1 that she did state so cannot be accepted or her such assertion is at least doubtful. The aforesaid evidence of PW1 is also proved to be an omission in the statement recorded under Sec.161 of Cr.P.C. The evidence of PW1 mentioned above also cannot be taken into account.

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PW1 deposed that she did not tell anything about the incidents to anybody in her house. She spoke that it was because she was afraid as she was threatened by the appellant that he would kill her parents if she divulged anything to anybody. PW1 conceded that she did not state to the police that she was so threatened by the appellant. The evidence of PW1

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about the threat has been proved to be an improvement. She spoke to the threat for the first time only while giving evidence in court. She did not state any other reason for not disclosing the alleged incidents to the inmates of her house. The prosecution is thus without a valid explanation as to why PW1 did not disclose the alleged rape on her to her people soon after the incidents.

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16 . PW1 stated that the incidents of rape had taken place in the dwelling shed of the appellant and also in the bathroom of his house. The witness deposed that the said bathroom was on the first floor of the said house. Neither Ext P3 scene mahazar nor Ext P5 site plan suggests the existence of any bathroom on the first floor of the house. Going by Exts P3 and P5, the scene of occurrence was the bedroom on the first floor. PW8, village officer, who prepared Ext P5 site plan and PW9, the investigating officer, who authored Ext P3 scene mahazar have deposed that the place of occurrence was the bedroom. But PW1 introduced a bathroom on the first floor of the house as the place of occurrence. Although PW1 was assertive that she stated to the police that the bathroom was the place of occurrence, PW9 deposed that no such statement was given to him by PW1. The evidence of PW1 that one of the places of occurrence was the bathroom on the first floor of the appellant's house was not in agreement with the prosecution version that it was the bedroom.

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The said discrepancy was taken note of by the learned trial judge as well. The learned judge stated that the evidence of PW1 that she was raped inside the bathroom was a mistake for bedroom. It is not possible to accept the said finding of the court below. There is nothing in the evidence of PW1 to have an inference as had by the learned trial judge. PW1 was 14 years old at the time of giving evidence in court. Therefore she was able to distinguish between a bedroom and a bathroom. She seems to have had no idea about one of the places of occurrence.

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We have discussed the evidence of PW1. We do not find any materials in her evidence to find commission of rape on her by the appellant.

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PWs 2 to 4 are the remaining important witnesses for the prosecution. PW2 is the mother of PW1. PW3 was PW1's class teacher. PW4 was the headmistress of the same school. According to the prosecution, PW1 divulged the incidents to PW3 first and then to PW4. It is alleged that PW4 informed PW2 about the incidents of rape. We shall consider the evidence of PWs 2, 3 and 4.

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PW3 deposed that she questioned PW1 when the former saw sip-up and toffees in the school bag of the latter. When questioned, said PW3, she understood that the child was sexually abused at the house of the appellant. The evidence of

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PW3 suggesting sexual abuse need not be necessarily rape. PW3 did not state that she was told anything about rape by PW1. The evidence of PW3 does not even suggest that the culprit was the appellant. What all PW3 stated in her examination-in-chief were only that she was told by PW1 that the confectioneries were given to PW1 by the appellant and that the sexual abuse on PW1 had taken place in the house of the appellant. PW3 did not say that PW1 was sexually abused by the appellant or that the former was told so by the latter. To say that the confectioneries were given by the appellant or that the sexual abuse had taken place in the house of the appellant cannot go to the conclusion that the appellant himself was the person who sexually abused PW1. There was no attempt in the examination-in-chief of PW3 to elicit from her that the appellant was the person who sexually abused PW1. It is not clear from the evidence of PW3 that the appellant was the person who sexually abused PW1. As already stated, what was stated was only that the sexual abuse had taken place in the house of the appellant and that the confectioneries were given to the child by him.

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Who next is PW4. She was the headmistress to whom PW3 reported the matter. According to PW4, she was told by PW3 that sip-up and toffees were seen in the bag of the child and that the same were given to the child by a neighbour of the child.

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PW4 spoke that she was informed by PW3 that PW3 was told by the child that the said person (neighbour) touched or caught the body of the child here and there. There is nothing in the said evidence of PW4 even to suspect commission of rape on the child. PW4 called the child to the office and asked the child, but the child did not say anything to PW4. According to PW4, the child started to cry and PW4 did not ask anything more as there were a few book sellers in the office room. PW4 asked the child to come with the mother to the house of PW4. Accordingly, said PW4, the child came to the house of PW4 with the mother and PW4 informed the matter to the mother. PW4 spoke that at that time also she did not ask the child anything. The evidence of PW4 in her examination-in-chief is clear that she did not hear anything from the child.

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PW4 spoke in her cross-examination that when the child and its mother met PW4 at her residence, she was told by the child that the neighbour touched the private parts of the child. This evidence of PW4 was contrary to her own evidence in her examination-in-chief. She deposed that the version of hers in her cross-examination was stated to the police while giving statement. Her statement was recorded by PW12. PW12 deposed that PW4 did not state so in her statement recorded under Sec.161 of Cr.P.C. The changed version of PW4 in cross-

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examination cannot therefore be given credence. Even if the changed version of PW4 amounts to an incriminating evidence against the appellant, it cannot be taken into consideration to convict the appellant. For, the said evidence of PW4 in crossexamination was not put to the appellant when he was examined under Sec.313 of Cr.P.C. The prosecution gained nothing by the examination of PW4 in court.

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PW1's mother PW2 gave the FI statement. The same is Ext P1. PW2 stated in Ext P1 that she was told by her child that the child was sexually assaulted by the appellant at his shed on a Sunday and at his house on another Sunday before December, 2010. It was also stated in Ext P1 by PW2 as heard from the child that at the second occasion the appellant attempted to thrust his penis into the vagina of the child and that when the child cried unable to withstand the pain, the appellant closed the mouth of the child with his hand. The FI statement is not substantive evidence. It can be used in evidence only for corroborating or contradicting the evidence of its giver. Ext P1 is not useful to the prosecution for corroborating the evidence of PW2. For, PW2 did not state in court in accordance with Ext P1.

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PW2 did not depose in court to her version in the FI statement that she was told by the child that the child was sexually abused by the appellant or that the appellant attempted

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to thrust his penis into the vagina of the child or that when the child cried out of pain, the appellant with his hand closed the mouth of the child. PW2 spoke in court only as follows: (i) she became aware of the matter only when she was told about it by the headmistress, (ii) when PW2 asked the child, the child divulged the matter to the former, (iii) at the time of the incident the child was studying in the 6^th standard and (iv) as advised by the police, she (PW2) took the child to a doctor. We wish to quote PW2 in her own words.

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ഞഞാന്‍ ഈ കഞാരരരൃം അററിയയന്നതത് H.M എനന്ന അവരയനടെ വവീടറില്‍ വറിളറിചത് പറയയരൃംപപഞാള്‍ ആണത്.

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ഞഞാന്‍ വവീടറില്‍വന്നയ പമഞാപളഞാടെത് പചഞാദറിചയ. പമഞാള്‍ കഞാരരങ്ങള്‍ പറഞയ.

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നകഞാചത് ആററില്‍ പഠറികയരൃംപപഞാളഞായറിരയന്നയ സരൃംഭവരൃം എന്നഞാണത് പറഞതത്.

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പപഞാലവീസത് നറിരപദശറിച (പകഞാരരൃം കയടറിനയ Doctor നടെ അടെയതയ നകഞാണയപപഞായറിരയന്നയ.

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Rest of the evidence of PW2 relates to her explanation for the delay in giving the FI statement. PW2 did not say what precisely was the matter told to her by the headmistress. Nor did PW2 say what was the matter divulged to her by her child. It was also not stated by PW2 as to what was the incident which happened while the child was studying in the 6^th standard. The evidence of PW2

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in her examination-in-chief does not take us anywhere. No attempt was made in the examination-in-chief of PW2 to elicit what she had stated in the FI statement. The evidence of PW2 is also not useful to the prosecution to prove rape on her child.

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We now move on to medical evidence. PW10 is a gynecologist. She on 10.9.2011 examined PW1 at the general hospital at Ernakulam. PW10's report is Ext P8. She spoke in court as follows:

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“Upon examination there were no general injuries or genital injuries. Pubic hair was absent. Hymen was torn, an old tear. Carunculae hymenalis was present. Vagina admits one finger, only with difficulty. Rugae distinct. Vaginal swab and smear were taken for chemical analysis. Final opinion regarding sexual intercourse is pending for want of chemical report. Penetration present”.

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PW10 issued Ext P8 (a) certificate when the investigating officer sought for a clarification from her. Her evidence pertaining to Ext P8 (a) is extracted below:

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“As per request from inspector of police, Palluruthy, I have given a certification that penetration present, partial, as vagina admits one finger and as patient is crying with pain when two fingers are admitted with difficulty”.

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The learned public prosecutor submitted that the prosecution could bring home sufficient medical evidence for rape by the examination of PW10 and by letting Exts P8 and

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P8(a) in evidence. According to the learned counsel for the appellant, the medical evidence produced by the prosecution is not only insufficient but also manipulated. It was also submitted by the learned counsel that the opinion of PW10 was liable to be discarded as she did not give a final opinion regarding sexual intercourse as stated by her in her evidence and in Ext P8. Another submission of the learned counsel was that as per Ext P8 there was no evidence for penetration, but Ext P8 (a) was issued suggesting penetration contrary to Ext P8. We shall consider the attack on PW10's evidence and on Exts P8 and P8(a).

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We shall first consider the submission that the opinion of PW10 shall be discarded since she did not give a final opinion in Ext P8 on sexual intercourse. PW10 had taken the vaginal swab and smear for chemical examination, which was why she noted in Ext P8 and deposed in court to the effect that the final opinion was kept pending till receipt of the report of chemical examination. It is true that the prosecution is in dark as to what happened to the vaginal swab and smear taken by PW10. No chemical examination report is produced also. But it should be noted that the incidents of rape allegedly occurred in 2010 and PW1 was examined by PW10 long thereafter on 10.9.2011. Therefore there could be no traces of semen in the vagina of the

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prosecutrix even if rape had taken place. That means a chemical examination report on the vaginal swab and smear is totally unncessary in the present case. Therefore, although PW10 reserved final opinion pending chemical examination report, her opinion that penetration was present can be taken into consideration if such opinion is acceptable to science and her evidence is free from suspicion.

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We next consider the manipulation alleged by the learned counsel for the appellant. For that, we need to extract a portion of Ext P8. We extract it below:

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Based on the above findings I certify that:

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There is no evidence/evidence of general bodily injuries

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There is no evidence/evidence of genital injuries/penetration +

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It may be noted that the words 'no evidence' are underscored by PW10 and a plus (+) mark is put against the word 'penetration'. The underscore in point No.1 in the extracted portion is not material and there is no dispute on that. According to the the learned counsel for the appellant, point No.2 shall be read as 'there is no evidence of genital injuries and penetration' and the plus sign was put subsequently. Similar suggestions were put to

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PW10 in cross-examination and she denied those suggestions. She spoke that the words 'no evidence' were underlined to mean that there was no evidence of genital injuries. Her such evidence is only to be accepted since a plus sign is seen put against the word 'penetration' and there is nothing in the evidence to find that she put the plus sign subsequently. We exclude the possibility of any manipulation.

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The crucial question is whether there is sufficient medical evidence for rape. PW10 opined that there was partial penetration. She was asked in cross-examination as to what was the evidence for partial penetration. She replied that the vagina admitted one finger and that the hymen was torn. We are afraid, we are unable to accept the evidence of PW10 that penetration could be inferred simply because the vagina admitted one finger and the hymen was torn. PW10 herself stated that the vagina admitted one finger only with difficulty. The finger test is not a sure test to give an opinion suggesting penetration. We in this connection refer to Lillu @ Rajesh vs State of Haryana (AIR 2013 SC 1784). The Supreme Court did not accept the finger test as a reliable test to infer penetration. The apex court stated that it would depend on the size of the finger inserted. It was

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also held that rapture of hymen was also no indication for penetration. As PW10 herself spoke, intense physical activities

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like sports, dancing et cetera could cause tearing of hymen. It is impossible to accept the opinion of PW10 that there was penetration simply because the hymen was torn and the vagina admitted one finger. There is no sufficient medical evidence for the prosecution to contend for penetration/sexual intercourse/rape.

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We conclude. The evidence of PW1 does not prove the alleged rape on her by the appellant twice or even once. So is the case with the evidence of PWs 2 to 4. Medical evidence for rape is absent. We have indicated where did the trial court go wrong. In the process of finding the appellant guilty, the trial court even considered the statement of PW1 recorded under Sec.161 of Cr.P.C as seen from paragraph 14 of the impugned judgment. It was legally impermissible. The impugned conviction and sentence cannot be sustained. We do not find any evidence to convict the appellant even under Sec.354 of IPC inasmuch as there is no acceptable evidence to find as to what were the alleged dirty things done to the prosecutrix. We allow the appeal.

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The appeal is allowed. The conviction and sentence impugned in the appeal are set aside. The appellant is acquitted of the charge under Sec.376 of IPC. He is set at liberty in this case. He shall be released from custody forthwith, provided his

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further detention is not necessary in connection with any other

case.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU Sks/31.1.2019 JUDGE

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CRL.A.No. 471 of 2014

Sasi v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Sasi v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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