It is quite significant to note that the Kerala High Court in an extremely laudable judgment titled Ratheesh v. State of Kerala in CRL.A No. 692 of 2020 against the order/judgment CP 13/2015 of Judicial Magistrate of First Class, Alathur SC 187/2015 of Special Court-Trial of offence under SC/ST(POA) Act 1989, Mannarkkad while acquitting a man convicted of rape of a sixty-year-old woman has explicitly observed that the conviction of the accused cannot be based merely on the statement made under Section 313 CrPC as it is not substantive evidence. The Bench also made it clear that it can only be used against the accused when there is other evidence to hold the accused guilty. Very rightly so!
At the very outset, this extremely commendable judgment authored by Hon’ble Mr Justice K Vinod Chandran for a Division Bench of the Kerala High Court comprising of himself and Hon’ble Mr. Justice C Jayachandran first and foremost puts forth in para 1 that:
A very strange allegation of rape on a 60 year old, from the open, and witnessed by two minor children, who were accompanying the accused, is the case projected herein. The deceased was found to be a member of the Scheduled Caste, which resulted in the charge under the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, in addition to Section 324 & 376 r/w 34 of IPC.
The accused found guilty of the offences, was convicted and sentenced with three years rigorous imprisonment (RI) under Section 324, 10 years and fine of Rs.1,000/- under Section 376(m) and imprisonment for life with a fine of Rs.1,000/- under Section 3 (2) (5) of the SC & ST (POA) Act. The prosecution examined 27 witnesses before court, marked Exts. P1 to P23 and produced MO1 to MO4 material objects. The defense examined one witness as DW1 and marked 5 contradictions as Exts.D1 to D5, and Ext. D6, a copy of the report of mental status of the accused dated 15.7.2015.
Simply put, the Bench then states in para 2 that:
Sri. Vishnuprasad Nair, learned Counsel appearing for the appellant pointed out that the conviction has been entered into without any evidence. The victim’s testimony was recorded piece-meal by the trial court, seriously prejudicing the accused, since the testimony was improved every time the witness was put in the box. Even then, there were glaring contradictions marked as Exts.D1 & D2; from the FIS itself.
There is also serious discrepancy in the location of the injuries caused and witnesses who saw the victim also were not consistent in their testimonies. The identifying features spoken by the victim could fit any person and despite there being no prior acquaintance, there was no TIP conducted. The victim categorically spoke of having seen the accused after the incident, only in court and such identification cannot at all be believed or acted upon.
The Section 164 statement was taken in the presence of the police and PW26, the I.O, specifically spoke of having taken the victim to the Magistrate. It is also argued that the investigation was carried out by an Inspector while the SC & ST (POA) Act mandates such investigation to be carried out by an officer not below the rank of a Dy. S.P.
The provisions of the SC & ST (POA) Act are not at all applicable since there is nothing to prove that the accused had knowledge of the caste of the victim. The trial court, giving a go-by to the fundamentals of criminal jurisprudence, relied on the statements made by the accused under Section 313, wherein the accused said that he was acquainted with the victim. The Kerala Chemico Legal Examination Rules, 1959, is also relied on to argue that there is no clarity as to the tests carried on at the F.S.L which is mandatory under Rule 3A. The learned counsel relies on AIR 2021 SC 2190 Pathan Jamal Vally vs, State of Andhra Pradesh to assail the conviction under SC & ST (POA) Act.
To put things in perspective, the Bench then envisages in para 4 that:
The FIS was by PW1, the victim, marked as Ext.P1. According to the victim, she had gone to the forest area to graze her goats. Within the forest, there is a small shed made of plastic, to shelter the goats from the rain. When it started raining by around 4 p.m., she came to the shed to see two boys aged around 16 and one young man aged 35 years sitting in the shed. On being queried, they said that they had come to see the forest and had sheltered themselves from the rain.
The first informant then proceeded to call her grandmother, when the young man came near her and asked her where she is going. When she said that she was going to call her grandmother, he lifted her bodily and took her to the shrubs nearby and attempted to rape her. When she tried to wriggle out, he said that he was celebrating his honeymoon and attempted to put his genitals into her mouth. When she resisted, he hit her with a stone on the left ear and left breast. He also bit her on the breast and pulled on her genitals, with his fingers.
Though she tried to escape, the young man held her fast and the boys witnessed the entire episode. Then, the boys spoke up and the young man immediately left her and ran away and so did the boys. She chased them shouting loudly and hearing her shouts, one Shukkur (PW23) came from the nearby quarry.
Shukkur summoned the other locals and she complained of pain on the left side of her head, right hand and all over her body. Her relatives took her to the hospital and she spoke of her assailant being a fair, lean, young man, sporting a beard. She also asserted that she can identify the said assailant and also the boys, if they are shown to her.
As it turned out, the Bench then points out in para 5 that:
The victim was examined as PW1 first on 8.2.2017. She spoke of her avocation, her family circumstances and that she spends her time, from 10.30 to 6, in grazing goats. She spoke of having moved to the shed when rain commenced and having seen three persons sitting inside the shed. Her deposition was that, when she moved away to call her grandmother, the accused was standing with his gaze fixed on her and later the accused pulled her into the shrubs and attempted to rape her. On this was marked Ext.D1 which read as; when she told the accused that she was going to call her grandmother, the accused bodily lifted her, threw her into the shrubs and attempted to rape her. Her testimony continued that, he ordered her to lie down and poked her on the arms and head. He also turned her arms to the back and hit her with a stone on the head.
When the rain stopped, the assailant left and she remained in the spot crying, when PW23 came to her. All of those were omissions in the FIS. PW23 then gathered the locals and she was taken to the Alathur Hospital. She marked Ext.P1 and soon after chief examination, she was cross examined, wherein she categorically stated that she had no acquaintance with the assailant.
Ext.D2 contradiction, from the FIS was that the assailant left, when the boys said something; which she did not testify to. It was also her statement in cross examination that she sustained injuries, from the stones, when herself and the assailant were rolling in the shrubs. She denied that she had told the doctor that three persons had together raped her.
She repeated that at the time of the incident it was dark, and when PW23 came, she was sitting on the ground and she never ran screaming. She denied such a statement having been made before the police and asserted that she saw the accused for the first time in court and also alleged that the accused was mad.
In re-examination, it was elicited that she had seen the accused in the Alathur police station and in cross, contrary to her earlier statement she said, the policemen showed her the accused. After the witness was subjected to re-cross, it is seen that she was recalled and sworn in on the very same day, to identify MO1 stone, which she admitted she picked up from the forest in the presence of the police and also stated that there were many similar stones at the crime scene. MO1 was also admitted to have been picked up, 15 days after the crime.
Without mincing any words, the Bench then states in para 6 that:
The witness was discharged and later again summoned on 20.07.2017, to speak about the Section 164 statement she had given before the Magistrate. We see no application having been filed by the prosecution or an order passed by the trial court, other than a cryptic: 'issue summons to PW1, CW2 & 29 t0 32', from the Proceedings Sheet, on 09.03.2017. PW1 marked Ext. P9, S.164 statement as Ext.P9 and also identified the full sleeve shirt (MO2), green blouse (MO3) and the yellow under-skirt (MO4) which were voluntarily surrendered by her before the police. In cross examination, she stated that the summons was brought to her, by the police and that she went along with her daughter in law to the court. She admitted that before going to court, the policemen had taken her statement.
She denied having testified falsely and admitted that MO2 to 4 were surrendered after one week. Again PW1 was recalled and sworn in on 27.10.2017. We see an application filed by the prosecution that the testimony regarding the incident has not been recorded and the learned judge allowed the petition, for the reasons stated in the application; we cannot but remark, quite preposterous. This however is not the reason stated in the impugned judgment. We will deal with the issue more elaborately when we refer to the impugned judgment.
It is worth noticing that the Bench then observes in para 7 that:
In chief-examination on the third recall, PW1 was put a specific question about having testified at the first instance that the accused took her to the shrubs, attempted to rape her, asked her to lie down, and when the rain ceased, he left. There was no answer recorded. There was a further question put as to whether the accused did something to her between this time.
Then the witness testified that the accused abused her and told her that he has not spared even his mother and sister and that she would not be left free; all gross embellishments. She also alleged that he pursed her lips and attempted to put his genitals into her mouth, which was thwarted by herself moving away. Then the accused hit her on the head with a stone, the scar of which was displayed in court. There was no wound on the head referred to in the FIS or the earlier testimony.
PW1 continued that, she was asked to lie down again and she tried to escape and kept her arms crossed on her breasts. The accused pulled her arms apart and bit on both her breasts and mauled her genitals; again, neither stated earlier nor in the FIS. When the rain ceased, there was light and she got an inner strength which prompted her to scream out loud, when the accused left her; quite contrary to her earlier statements and the testimony at the first instance. The victim was cross examined and the allegation was that the court had not written down the entire evidence at the first instance.
Omissions from the prior and present narration were specifically confronted to the witness and the significant ones are with respect to:
- The assailant having pulled both her arms behind,
- the assailant having pursed her lips and attempted to put his penis into her mouth, which having slipped away on her moving away,
- the victim having crossed her arms over her breasts and the assailant having pulled them aside to bite her breasts,
- the assailant having mauled her genitals
- the accused having run away, when she sat on the ground and screamed.
The discrepancy also was about what exactly the accused spoke to the victim, in the course of the aggression; which version was quite different from the FIS and also the earlier testimony. The earlier testimony on that aspect was also different from that in the FIS.
Be it noted, the Bench then says point blank in para 8 that:
We do not find any valid reason for having repeatedly summoned the witness or an order having been made on that count under Section 311 of the Cr.P.C. at the second instance. There is not even a formal order made, that the recall of the witness was essential for the just decision of the case; at least to mechanically comply with the provision.
At the first instance when PW1 was recalled, on the same day, ie: on 08.02.2017, it was for reason of MO1 stone having been not marked; quite permissible. Later she was again recalled for reason of the omission to produce and mark the S.164 statement and the dress surrendered by the victim to the police, without a written or oral application or a brief statement of the reason as to why the court thought it fit to recall the witness. In any event even the recall at the second instance can be justified.
For the third time, the witness was recalled in an application filed by the prosecution, which according to the judgment in appeal, states the reason of the full particulars of the incident having not been brought out. Infact, we already noted the specific ground in the application made, which was that the earlier testimony was not recorded; which is an allegation against the Court.
The application filed on 16.10.2017, is not seen acknowledged as received by the accused or his counsel; but in the order the absence of an objection is recorded. We verified the original deposition of PW1 and see different hand-writings in the testimony, recorded on the first two days and the last day; obviously by two different Judicial Officers.
Most forthrightly, the Division Bench then minced no words to hold in para 9 that:
The learned Sessions Judge completely lost sight of the procedure to be followed after completion of evidence, as provided under S.278 Cr.P.C and glossed over the same, causing serious prejudice to the accused. Sub-Section (1) provides that, after the evidence is completed under S.275 or S.276, it shall be read over to the witness in the presence of the accused, if he is in attendance, or of his pleader, and necessary corrections also can be made.
If the witness denies the correctness of any part of the evidence, as per sub-section (2), the presiding Judge, instead of correcting the evidence, can make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. This would ensure that any subsequent Officer taking charge and the Appellate Court would be appraised of the demeanor of the witness, the circumstances in which the testimony was again recorded and so on.
The procedure in terms of S.278 should have been adhered to by the Sessions Judge who recorded the evidence. When a plea is made before Court that evidence was not recorded properly or statements made in the box were not recorded and as in the instant case, there is a specific allegation that the evidence was not read over; first the evidence should be read over to the witness.
Then a memorandum ought to have been prepared for recording the deposition and suitable remarks, if necessary, had to be made, as the learned Judge thinks fit. None of this procedure was followed in the above case. Be that as it may, we find that here, there is an attempt to fill up the lacuna in the evidence, especially since there is a clear description of the incident in the first testimony itself.
As we noticed, finding that the material objects were not marked and again for reason of the S.164 statement not being placed on record, the witness was recalled twice under S.311. Then on the third occasion the description was considerably embellished by the prosecutrix, in which testimony there were glaring disparities from the first testimony. We find no reason to rely on or accept the subsequent testimony, which departs considerably from the earlier testimony.
Most remarkably, the Division Bench then mandates in para 22 holding that:
The Trial Court while finding that in a rape case, there can be no corroboration expected, however found sufficient support from the evidence of PW23. The trite position is that when the evidence of the prosecutrix is reliable, trustworthy and inspires confidence in the Court, there is no requirement for corroboration; which we find difficult to apply in the present case. The testimony of PW1 is shaky and the evidence of PW23 who saw the victim immediately after the alleged incident, also does not fully support her testimony.
Contrary to the FIS, the testimony of PW1 was that, after the incident, she sat on the ground, in the scene of crime itself, to which spot, PW23 came, on hearing her cries. PW23 however says that he heard a woman screaming and saw PW1 running towards the shed in which he was sitting. He ran to the side of the woman and consoled her, as also elicited what transpired. Again, while PW1 says that it was when the minor children spoke something that the aggressor left her, the evidence of PW23 is that he saw the minor children climbing downhill before he heard the scream of PW1. He also had an inconsistent statement that he saw the accused and the minor children.
We find no support from PW23's testimony, to the case of the prosecution. The next aspect found by the trial court is the identity of the accused which speaks of a detailed account of the physical features of the accused, tallying with the physical appearance of the accused. We find absolutely no detailed account of the physical features having been given by the victim to the police. As pointed out by the learned Counsel for the appellant, she only spoke of a fair, lean, young man with a beard; which could apply to anybody of that description.
As to the identification on the dock, there are serious doubts since PW1 first deposed that she saw the accused for the first time in the dock, after the incident. Later it was deposed that the police showed the accused to her in the police station. PW4 also said that he accompanied the victim to the police station when they were shown the accused. PW1 had absolutely no prior acquaintance with the accused and in that context, it was only proper that a TIP was conducted.
We do not agree with the trial court that the failure to conduct a TIP is proper and we hold otherwise. We also do not find any support from the scientific evidence of presence of spermatozoa on the under-skirt of the victim, which has been elaborately dealt with, in the previous paragraphs. We only agree with the trial court’s finding, rejecting the ‘epileptic insanity’ pleaded by the defense; the existence of such an ailment itself being rubbished by the expert examined on the side of the defence.
The mental insanity thus pleaded was not even supported by the doctor. But apart from that, we find absolutely no way to find a rape having been committed or at least an aggression leading to the charge of Section 324, especially when the identification itself is on a doubtful premise and the medical evidence speaks of no rape having been carried out.
Most significantly, the Division Bench then states upfront in para 26 that:
The charge under SC & ST (POA) Act would not lie since the victim asserts no prior acquaintance, there is no evidence led on that count and the accused is not identified as a local, by the numerous witnesses from the locality paraded before Court. We find that the learned Sessions Judge has grossly misguided himself and we find the appreciation of evidence as also the understanding of precedents referred, to be lacking and we find no way to uphold the impugned judgment.
Finally, the Division Bench then concludes by holding aptly in para 27 that, Having gone through the evidence led by the prosecution and having heard the learned counsel appearing for the appellant and the learned Special Government Pleader, we are of the opinion that the prosecution has not proved beyond reasonable doubt, the charges leveled against the accused. We hence acquit the accused and direct him to be released forthwith, if he is not required in any other case. The appeal is allowed.
In essence, we thus see that how precisely the Kerala High Court has made it indubitably clear that the statements made under Section 313 of the CrPC can only be used against accused if there is other evidence to hold him guilty. In absence of the other evidence, the court has to acquit the accused giving the benefit of doubt as the statement under Section 313 of CrPC cannot be considered in isolation and can only be considered in conjunction with the evidence adduced by the prosecution as pointed out by the Kerala High Court in this leading case as discussed hereinabove. Very rightly so!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
