Criminal Appeal No. 977 of 2007 · Kerala High Court · 2007

K.THANKAPPAN, J.----------------------------------------------CRL. APPEAL NO.977 OF 2007----------------------------------------------Dated this the 5th day of November, 2007JUDGMENTThis appeal is filed against the judgment in Sessions Case No.250 of2005 on the files of the Additional Sessions Court (Ad hoc)-I, Kalpetta.The appellant faced trial for the offences punishable under Sections 376(f)read with Section 511 and 377 I.P.C.2. The prosecution case against the appellant - accused was that on5.5.2005 at 1 p.m. the accused attempted to commit rape on PW.4, his owndaughter aged 7 years in the bed room of House No.KP.2/74 situated atNelliyambam, Nadavayal amsom within the limits of Kamblakkad PoliceStation and thereby committed the offences mentioned above. To provethe charge against the appellant - accused, the prosecution examinedPWs.1 to 8 and produced Exts.P1 to P6 and MOs.1 and 2. No oral ordocumentary evidence was adduced on the side of the defence. Onclosing the prosecution evidence, the accused was questioned under CRL.APPEAL NO.977/20072Section 313 Cr.P.C. The accused denied the incriminating circumstancesand stated that the case was foisted against him by PW.3, his second wife.He further stated that he fell in love with PW.3 who was his brother'swife's sister and whose husband had left her and that he married her whenshe became pregnant. He also stated that he had three children includingPW.4 in the second marriage. He further stated that he had not committedany offence as alleged by the prosecution. However, after considering theentire evidence, the trial court found the appellant guilty under Sections376(f) read with Section 511 and Section 377 I.P.C., convicted himthereunder and sentenced him to undergo rigorous imprisonment for fiveyears each and to pay a fine of Rs.20,000/- each and in default of paymentof fine, to undergo rigorous imprisonment for a further period of one yeareach for the offences under Section 376 read with Section 511 and Section377 I.P.C. The substantive sentences were ordered to run consecutively.The accused was also given the benefit under Section 428 Cr.P.C. Thetrial court also ordered that the fine amount of Rs.40,000/-, if realized,shall be deposited in a nationalized bank in the name of PW.4, the victim. 3. The appeal is filed through the jail authorities and the appellant isdefended by a State Brief. This Court head the learned counsel appearingfor the appellant as well as the learned Public Prosecutor. CRL.APPEAL NO.977/200734. Learned counsel appearing for the appellant has raised thefollowing contentions in challenging the judgment of the trial court: (i) thetrial court committed serious error in believing the evidence of theprosecution witnesses to find the appellant guilty of the charge as there arecircumstances to show that the evidence of PWs.3 and 4 is not reliable, (ii)the trial court committed serious error in recording the evidence of PW.4, achild aged seven years and that the procedure adopted by the trial court torecord the evidence of PW.4 is not in accordance with the provisions of theIndian Evidence Act, 1872, (iii) the evidence of PWs.3, 5and 6 wouldshow show that the case was foisted against the appellant by PW.3 with anulterior motive to take vengeance on him and (iv) the finding of the trialcourt that the appellant attempted to commit rape on PW.4 is not supportedby any medical evidence and that there was also delay in reporting thematter to the police.5. Before answering the contentions raised by the learned counselappearing for the appellant, it is only proper for this Court to look into thebackground of the case. The appellant married PW.3 , his brother's wife'ssister at a point of time when she and her child were neglected by herhusband. It has also come out in evidence that the appellant who was CRL.APPEAL NO.977/20074already married was compelled to marry PW.3 as she was carrying hischild. In that marriage, three children were born, PW.4 being the eldest.The incident as alleged by the prosecution happened on 5.5.2005 at 1 p.m.It was the prosecution case that the appellant bathed PW.4 and allowed herto sleep on his cot and thereafter he removed her undergarment upto herknees and placed his private parts in between her thighs. It has also comeout in evidence that eight days after the incident when PW.3 and theappellant were talking in the presence of PW.4, the child told PW.3 thatthe appellant was not a good person and that when PW.3 questioned her,she revealed to her all that had happened on 5.5.2005. Thereafter, thematter was reported to the police on 20.5.2005 after consultation withPW.6, a lawyer, PW.4 was sent to PW.1 for medical examination andcrime was registered against the appellant. PW.8 was the then SubInspector of Police who conducted investigation of the case and filed thefinal charge against the appellant.6. The main contention of the learned counsel appearing for theappellant is that the trial court ought not to have placed reliance on theevidence of the prosecution witnesses, especially PW.4, the victim, PW.3,her mother and PWs.5 and 6. In this context, it is only proper to see theevidence of PW.4 first. This witness was a child of seven years, just CRL.APPEAL NO.977/20075promoted to the second standard. As per Section 118 of the IndianEvidence Act, 1872, when a witness is brought before the court, it is theduty of the court to find out whether the witness is competent to giveevidence before a court of law. A perusal of the evidence of PW.4 andthe preliminary examination of the child would show that the methodadopted and the procedure followed by the trial court are not satisfactory.When a specific question was put to her regarding the class in which shewas studying, she stated that she was studying in the second standard.She also stated that being a Saturday, she had no class. Two otherquestions put to her and the answers given to those questions are asfollows:(Q) ഇപ(cid:3)(cid:4)ള എവ(cid:9)ട(cid:11)യ(cid:4)ണ(cid:14) പ(cid:15)(cid:4)ള ന(cid:9)ല(cid:18)(cid:19)നത(cid:14)() അറ(cid:9)യ(cid:9)ല. () ? AQഇവ(cid:9)ട(cid:11)എന(cid:9)ന(cid:4)ണ(cid:14) വനടതന(cid:14) അറ(cid:9)യ(cid:4)പ(cid:15)(cid:4)() ഇല.? A The trial court had also recorded asfollows:"I am satisfied that the child is a competentwitness to give evidence. She was questioned bythe Bench Clerk Sri. Poulose."The trial Judge was not in a position to ascertain the competency of thechild to speak the truth or to give evidence in a criminal case. Whencross-examined, this witness stated that പ(cid:3)(cid:4) ഇങടന ട(cid:31)യ(cid:14)ത(cid:19) എന(cid:19) കദ"ജആന(cid:9)പയ(cid:4)(cid:11)(cid:19)& ഏല(cid:9)(cid:18)(cid:19)ട(cid:9) പ(cid:31)ച(cid:9)പയ(cid:4)(cid:11)(cid:19)& സ(cid:9)സ(cid:9)ല(cid:9) വ(cid:18)"ല(cid:9)പന(cid:4)(cid:11)(cid:19)&പപ(cid:4)ല"സ(cid:9)പന(cid:4)(cid:11)(cid:19)& ഒട(cid:18), CRL.APPEAL NO.977/20076പറയണട(cid:15)ന(cid:14) അമയ(cid:4)ണ(cid:14) എന(cid:9)(cid:18)(cid:14)പറഞ(cid:14)തനത(cid:14). It is further recorded in theevidence that the child nodded her head positively when she was askedwhether പ(cid:3) അങടന ട(cid:31)യ(cid:14)ത(cid:9)ട(cid:19)പ/(cid:4)? From the evidence of this witness, it isnot possible to say that she was telling the truth before the court. In thedecision reported in Narayan Kanu Datavale v. State of Maharashtra,1997 Cri. L.J. 1788, a Division Bench of the Bombay High Court hadtaken the view that the evidence of a child witness should be accepted onlyafter the greatest caution and circumspection. The Bombay High Courtheld as follows in paragraph 12 of the above judgment:"........... It is well settled that the testimonyof a child witness should only be accepted afterthe greatest caution and circumspection. Therationale for this is that it is common experiencethat a child witness is most susceptible totutoring. Both on account of fear andinducement, he can be made to depose aboutthings which he has not seen, and once havingbeen tutored, he goes on repeating in a parrot likemanner what he has been tutored to state. ........"It is also elicited from the evidence of PW.4 that she did not like theappellant and was afraid of him as he used to come home drunk andquarrel with PW.3, his wife. 7. It is also not possible to hold that PW.3 was not having any CRL.APPEAL NO.977/20077grudge against the appellant. Though PW.3, the wife of the accused andthe mother of the victim had given evidence before the court that she wasnot keeping any animosity towards the appellant, she admitted in cross-examination that the appellant was plannng to give his property to his firstwife and the children born in that marriage. She also admitted before thecourt that her husband had not revealed his age at the time of theirmarriage and that she was aged 30 during the relevant time. These thingsmay not be of much relevance. Her married life was spoken to be ahappy one. The evidence of this witness would also show that she filedthe complaint before the police after consultation with PW.6, a lawyer andthat too after fifteen days of the incident. The evidence of PWs.5 and 6would show that they had advised PW.3 to file the complaint before thepolice. PW.1, the doctor who examined the victim stated that no injurieswere noted on the body of the victim and that there were no signs ofviolence of resistance. He also stated that there was no complaint of painby the child. Another aspect to be noted is the evidence of PW.8, the SubInspector of Police, Kamblakkad who conducted investigation of the case.He admitted that MOs.1 and 2, the nighty the undergarment respectively,alleged to have been worn by the victim during the relevant time were notsent for chemical examination as he was told that the above materialobjects were washed twice. That is not a reason for not sending the same CRL.APPEAL NO.977/20078for chemical examination. It is also to be noted that even according toPW.4, the appellant had removed her undergarment upto her knees and didsomething which she could not explain and which was explained by hermother. This also is a reason for rejecting the evidence of theprosecution. The trial court relied on three judgments of the Apex Courtreported in Bhoginbhai Hirjibhai v. State of Gujarat, A.I.R. 1983 S.C.753, Madan Gopal Kakkad v. Naval Duvey (1992) 3 S.C.C. 204 andState of Himachal Pradesh v. Asha Ram, A.I.R. 2006 S.C. 381. In theabove three decisions, the evidence given by the witnesses were differentform the evidence proved before the court. Hence, the judgments reliedon by the trial court are not applicable to the facts of the present case. 8. In the above circumstances and on an overall appreciation of theentire evidence, this Court is of the view that the finding entered by thetrial court is not justifiable and that the prosecution has not succeeded inproving the charge against the appellant. The impugned judgment isaccordingly set aside and the appellant - accused in Sessions Case No. 250of 2005 on the files of the Additional Sessions Court (Ad hoc)-I, Kalpettais acquitted of the charges levelled against him. The appellant shall bereleased forthwith, if he is not wanted in connection with any other case. CRL.APPEAL NO.977/20079The Crl. Appeal is accordingly allowed. Before parting with thejudgment, I record my appreciation for the persuasive arguments advancedby Sri. V. Manoj Kumar, learned counsel appearing for the appellantwhich helped in deciding the case. (K.THANKAPPAN, JUDGE) sp/ CRL.APPEAL NO.977/200710K. THANKAPPAN, J.CRL.A. NO.977/2007 JUDGMENT5th NOVEMBER, 2007