IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 Crl.Rev.Pet.No. 635 of 2001() ----------------------------- CC.19/1999 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER(S)/COMPLAINANT: --------------------- STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR RESPONDENT(S)/ACCUSED: --------------- UMESHAN.V., S/O.AMBU MEPPADU, KODANAM, KASARAGOD DISTRICT ADV. SRI.P.V.MURUGHAN FOR R THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.635 OF 2001 --------------------------------------------- Dated 24th June, 2010 O R D E R Chief Judicial Magistrate, Kasargod in C.C.19/1999 acquitted the delinquent juvenile, who was alleged to have committed offences under Sections 376 and 302 of Indian Penal Code and set him at liberty. The order of acquittal is challenged by the State in this revision filed under Section 38 of Juvenile Justice Act, 1986. Respondent is the delinquent juvenile. Prosecution case is that deceased Prasanthi, daughter of PW1 and sister of Pws.2 and 3 had gone to take bath to the nearby river from the residential house, at about 3 p.m on 27/6/1999. Prasanthi was aged less than 14 years at that time. Pws.1 CRRP 635/01 2 to 3 were in the house. After some time, PW2 had gone along the paramba. He found deceased Prasanthi lying on the ground and the delinquent juvenile lying on her body. Finding PW2, the respondent ran away PW2 called PW3 aloud to reach there and followed the respondent. Respondent was caught, when he could not run because of the marshy land. He was taken back to the place where Prasanthi's body was found. By that time Pws.1 and 3 also reached there. PW2 entrusted the respondent to PW3, who tied him to a pillar of their house. PW1 called PW4, a relative and neighbour so as to take Prasanthi to the hospital. PW1 took her in a jeep to Government District Hospital, Kanhangad. PW8, doctor examined her and found that she was dead. The body was kept at mortuary and intimation was given to the CRRP 635/01 3 police. PW1 furnished Ext.P1 FI statement, which was recorded by Assistant Sub Inspector of Police, Bekal Police Station at 5.15 p.m on the same day based on which crime No.189/99 was registered under Ext.P11 FIR. PW15, Circle Inspector on getting information of the commission of the offences over the telephone from Bekal police station, reached the scene of occurrence took over the investigating and prepared Ext.P2 scene mahazar and seized Mos.1 to 8 and Mos.13 and 14 from the scene. Respondent who was found tied on the pillar of the house of PW1, was arrested and under Ext.P3 mahazar the rope with which respondent was tied was seized. Under Ext.P9 mahazar, Mos.9 and 10 dresses worn by the respondent were seized on reaching the police station. At about 10 p.m he took the respondent to Medical College Hospital CRRP 635/01 4 and submitted a requisition to conduct a potency test. It was conducted. From the Medical College Hospital mortuary on 28/6/1999, PW15 conducted the inquest and prepared Ext.P4 inquest report and seized Mos.15 to 17, the bangles found on the hands of the deceased. He thereafter sent a request for conducting postmortem examination. PW9 Professor, Forensic Science and Police Surgeon, Medical College, Pariyaram on 28/6/1999 at 12.30 p.m conducted the autopsy and prepared Ext.P6 postmortem certificate and noted the anti mortem injuries. On conducting autopsy PW9 found that death was caused due to manual strangulation and there was evidence of sexual intercourse. The loose hairs found on the vagina were collected and pubic hairs cut from the body of the accused and the deceased CRRP 635/01 5 were also collected and sent for examination to the laboratory. On the request of the investigating officer on the night of 27/6/1999 delinquent juvenile was examined by PW9 and prepared Ext.P8 potency certificate and also prepared Ext.P13 Medico legal certificate with the finding that no general or genital injury or positive signs of sexual intercourse could be found out. Pubic hairs of the delinquent juvenile collected was also sent for examination. Ext.P7 report was submitted by Scientific Assistant (Biology), Forensic Science Laboratory, Thiruvananthapuram after examination of the hairs to the effect that out of five hairs which were the loose hairs collected from the vagina of the deceased, four hairs were human pubic hairs similar to the sample pubic hairs collected from the CRRP 635/01 6 respondent and the remaining one hair was human scalp hair which could not be compared with any other scalp hair, as no such sample was furnished. After completing the investigation, charge was laid. Accused being a juvenile, case was enquired by the Chief Judicial Magistrate, Kasargod in C.C.19/1999. Respondent pleaded not guilty. On the side of the prosecution 15 witnesses were examined and 14 exhibits were marked and 18 material objects were identified. No evidence was adduced by the respondent. Learned Chief Judicial Magistrate, on the evidence found him not guilty and acquitted him. It is challenged in this revision. 2. Learned Public Prosecutor and Learned counsel appearing for the respondent were heard. When the revision was posted on 16/6/2010, learned Public Prosecutor was CRRP 635/01 7 heard. At the time of arguments learned counsel for respondent was asked to support the order of acquittal in view of the perverse appreciation of evidence by the Chief Judicial Magistrate. Learned counsel sought time. When the case was posted for today, learned counsel appearing for the respondent submitted that mother of the delinquent juvenile wanted the case to be transferred to another Bench. According to the learned counsel it is because of the apprehension that family of the deceased has some connection with me. There is absolutely no basis for the said apprehension as I have nothing to do with the prosecution witnesses. Evidently, attempt is to avoid the Bench, on the apprehension that the order of acquittal may not be upheld. Such an attempt cannot be allowed to succeed. Therefore, the CRRP 635/01 8 attempt to avoid the bench was rejected and learned counsel appearing for the respondent was heard. 3. Learned counsel appearing for the respondent submitted that learned Chief Judicial Magistrate has appreciated the evidence in the proper perspective, after conducting a local inspection and sufficient reasons were shown why the prosecution case cannot be believed and in such circumstances, there is no reason to interfere with the order of acquittal. Learned counsel would argue that evidence of Pws.1 to 3 that PW2 had seen the delinquent juvenile lying on the body of the deceased cannot be believed and case of PW1 in Ext.P1 FI statement is that the deceased had gone to take bath, when the incident occurred and not when she was returning after taking CRRP 635/01 9 bath and therefore, development in the case is to be properly appreciated. It was argued that respondent was catching fish from the nearby river and as the real culprit ran away, local people caught hold of the respondent and produced him before the police and he is not in any way connected with the incident. Learned counsel would argue that absence of any injury on the respondent and failure to find any evidence of recent sexual intercourse, when respondent was examined on the same night, indicate that respondent did not commit rape and he is innocent and the case has been foisted due to the pressure of Senior police officer related to PW1. Learned counsel would argue that in such circumstances, when on appreciation of evidence the view taken by the Chief Judicial Magistrate is a reasonable view CRRP 635/01 10 which could be taken, in a revision against the order of acquittal, order of acquittal may not be interfered. 4. Fact that Prasanthi, a girl aged 14 years was murdered on 27/6/1999 and she was subjected to rape and the cause of her death was manual strangulation are not disputed. Evidence of PW9, Professor of Forensic Science Medicine and Police Surgeon, Medical college, Pariyaram who conducted the autopsy and prepared Ext.P6 postmortem certificate establish that at the time of autopsy he noted following antemortem injuries. “1. Contused abrasion over an area 9x5 cm on the front of neck, more towards the right side. CRRP 635/01 11 2. Multiple small abrasion, some of them curved, measuring in size from 0.3 cm to 0.5 cm on the undersurface of chin and upper part of left side of neck. 3. Abrasion 0.2 x 0.1 cm over the left angle of jaw. Underneath injuries 1 to 3, the strap muscles of the neck were found infiltrated with blood. The soft tissues around the superior horn of thyroid cartilage on the right side were also infiltrated with blood, cartilages and hyoid bone were intact. 4. Abrasion 0.3 x 0.1 cm on the right side of chin, 2 cm below and outer to the angle of mouth. 5. Abrasion 0.7 x 0.1 cm, horizontal on the left cheek, 4 cm outer to the mouth. CRRP 635/01 12 6. Abrasion 1.5 x 1 cm on the left inguinal region. 7. Two small scratch marks. 1.5 cm each, closely placed and parallel to each other on the outer aspect of left thigh, 10 cm above the knee. 8. Abrasion 0.5. x 0.3 cm on the front of left knee. 9. Abrasion 0.5 x 0.5 cm on the front of right leg. 2 cm below the knee. 10. Multiple small abrasions over an area 8x6 cm, involving the uppermost part of right thigh. 11. Multiple small abrasions and grazes over an area 19x10 cms involving the right infra axillary area, extending up to right breast. 12. Abrasion 9x4.5 cm on the back of trunk, 6 cm to the right of midline and 7 cms below the CRRP 635/01 13 angle of shoulder-blade.” Ext.P6 with the evidence of PW9 establish that cause of death of Prasanthi was manual strangulation and she was subjected to rape PW9 deposed that she could have been subjected to rape immediately before death or immediately after the death. Whatever it be, from Ext.P6 and evidence of PW9 it is conclusively established that cause of death of Prasanthi was manual strangulation and she was subjected to rape. 5. Ext.P1 FI statement was furnished by PW1 at 5.15 p.m on 27/6/1999 itself. In Ext.P1 PW1 has narrated how he came to know about the incident and where she found the body and what all transpired therein. As per the version seen in Ext.P1, Pws.1 to 3 were in the house at about 3 p.m on 27/6/1999. After taking noon CRRP 635/01 14 meal Prasanthi had gone to take bath with clothes to wash. After some time, PW2 went along the same way. Evidence is that Prasanthi used to take bath in the nearby river, which lies east west and to the north of the house of PW1. It is not disputed that property of PW1 up to the river is lying in four terraces. Body was found in between the river and the house of PW1, on the way to the river. According to the version in Ext.P1, PW2 found respondent lying on the body of the deceased. He rushed to the spot. Respondent ran away. While following him, PW2 called for PW3. Pws.1 and 3 on hearing it, rushed to the spot. By that time, respondent was caught hold of by PW2 and taken to the place, where her body was lying. Pws.1 and 3 found the body of the deceased lying with injuries on the neck, CRRP 635/01 15 motionless. PW2 entrusted the respondent with PW3 and the deceased was taken in a jeep to the hospital. PW3 tied the respondent to a pillar of the residential house. Later PW15 arrested him. PW1 deposed the fact personally known to him. PW2 who had seen the respondent lying on the body of the deceased and who had caught hold of the respondent, had given evidence as to what he had seen and how he caught hold of the respondent and how he called for PW3 and thereafter entrusted the respondent to PW3. PW3 had also deposed as to what he had seen on rushing to the spot along with PW1 and also the fact that respondent was entrusted to him by PW2 and he tied the respondent with a rope on the pillar of their house. Learned Chief Judicial Magistrate did not accept these evidence. Question is whether the evidence of CRRP 635/01 16 Pws.1 to 3 could be brushed aside as has been done by the learned Chief Judicial Magistrate. 6. Learned Chief Judicial Magistrate disbelieved the prosecution case firstly for absence of any injury on the body of the respondent or his private parts, holding that as the deceased sustained injuries, there should have been a scuffle which should have resulted in injury on the body of the respondent. Learned Chief Judicial Magistrate also found that as the respondent was examined by the doctor on the same night and if he had subjected the deceased to rape, there would have been injuries to his pennis as the victim is only aged 14 years and there should have been traces of sexual intercourse on the pennis of the respondent and as there was no traces of any injury or of sexual intercourse CRRP 635/01 17 as proved by the evidence of PW9, the prosecution case cannot be believed. Though Ext.P7 report which establishes that pubic hairs collected at the time of autopsy by PW9 from the body of the victim was found to be similar to the pubic hairs of the respondent collected by PW9 and sent for examination, and pubic hair of the respondent could not have been found on the private part of the victim unless he is the person who committed the rape, learned Chief Judicial Magistrate held that there was possibility of plucking hairs of the respondent and placing them on the body of the deceased to create evidence as respondent was in the custody of the police on the night of 27/6/1999 and pubic hairs of the victim was collected only on the next day. Question is whether these are valid grounds to disbelieve CRRP 635/01 18 the evidence of Pws.1 to 3 and the scientific evidence. 7. Before considering the evidence of Pws.1 to 3, presence of pubic hairs of the respondent found on the private parts of the victim is to be appreciated. Ext.P7 report of the Scientific Assistant (Biology) establish that all hairs in item Nos.1,2 and 3 were cleaned in soap solution and then in ether alcohol solution and thereafter they were examined under the microscope before and after bleaching. Item No.1 was the hairs of the victim collected by PW9 at the time of autopsy. Item No.2 was five loose hairs collected by PW9 from the private parts of the victim at the time of autopsy. Item No.3 was pubic hairs of the respondent collected by PW9. Ext.P7 report shows that the pubic hairs of the CRRP 635/01 19 deceased cut at the time of autopsy and preserved and sent for analysis varied in between between 0.3 c.m and 2.9 cm. The root portions were found cut and the tips were found pointed. Out of the hairs in item No.2, four hairs which are described in report as type-I hairs, were having a length of 4.9 cm, 5.1 cm, 6 c.m and 6 c.m. Roots were of telogen phase in three of the four hairs while it was of anagen phase in the remaining one hair. Tips were found pointed in three of the four hairs while it was cut in the remaining one hair. Remaining one which was described as Type-II hair was a black coloured hair of length of 3 cm and root was of telogen phase and tip was found cut. On examination it was found to be a scalp hair. Ext.P7 report shows that as the sample of scalp hair of either the victim or CRRP 635/01 20 the respondent was not sent, it could not be verified whether it relates to the victim or the respondent. Item No.3 is the pubic hair of the respondent. On examination it shows that root portions were cut and tips were found pointed in 11 out of the 20 hairs while the tips were found cut in the remaining nine hairs. The findings were stated as follows: “1) Of the five hairs in item No.2, four hairs (type-I) were human public hairs similar to the sample pubic hairs in item No.3 and not similar to the sample pubic hairs in item No.1. 2) Remaining one hair (Type-II) in item No.2 was a human scalp hair. Comparison of this hair was not possible as sample scalp hairs were not provided.” Result of examination shows as follows: 1) Of the five hairs in CRRP 635/01 21 item No.2 four hairs (Type-I) are human public hairs which are similar to the sample pubic hairs in item No.3 2) The remaining one hair in item No.2 (Type-II) is a human scalp hair. Based on Ext.P7 it can conclusively be found that the pubic hairs of the respondent were found on the private parts of the deceased when autopsy was conducted by PW9. Question is how far the evidence on the basis of comparison of hair could be accepted. 8. Apex court in K.K.Jadav v. State of Gujarat (AIR 1966 SC 821) held: “The writers of medical jurisprudence, have stated that from the microscopic examination of the hairs it is possible to say whether they are of the same or of CRRP 635/01 22 different colours or sizes and from the examination it may help in deciding where the hairs come from.” In Maghar Singh v. State of Punjab (1975 (4) SCC 234) identification of the accused was made on the basis of scientific examination of the hair found in the weapon of offence which was accepted by the court. This court in Mohanan Kani v. State of Kerala (1992 (2) KLT 839) had considered the evidentiary value of the report based on comparison of the hair and held that scientific evidence is reliable. Therefore, presence of the pubic hair of the respondent in the private parts of the deceased is definitely a satisfactory test to conclude that it was the respondent who committed the rape. Unfortunately, learned Chief Judicial Magistrate ignored this vital evidence on the CRRP 635/01 23 ground that pubic hair of the respondent could have been planted by the police. Learned Chief Judicial Magistrate dealt with this aspect as follows: “It is pertinent to note that at this juncture that the public hair was collected from the body of the delinquent juvenile by PW9 the doctor at about 10 p.m on 27/6/1999. At that time the body of the Prasanthi was not even brought to the Medical College. It was in the custody of the police and kept in the mortuary of Kanhangad hospital. The delinquent juvenile was also in the custody of the police right from 7 p.m on 27/6/1999. So the possibility of the police collecting some public hair from the body of the delinquent juvenile and placing near the CRRP 635/01 24 vaginal portion of the Prasanthi cannot be ruled out from the circumstances.” It is not known how Chief Judicial Magistrate can arrive at such a conclusion. Ext.P7 shows that pubic hairs of the respondent collected by PW9 and examined at the laboratory were loose pubic hairs and pubic hairs which were cut and preserved at the time of autopsy. Ext.P7 shows that root portion of the loose four pubic hairs are similar to that of the respondent. The root portion of those public hairs were not cut, as is the case that pubic hairs of the victim collected by PW9 which was marked at the laboratory as item No.1 or pubic hairs of the respondent, which were marked as item No.3. The root portion of all those hairs were cut while the root of the four pubic hairs of item No.2 were not found cut. When PW15 investigating CRRP 635/01 25 officer was examined, there was not even a suggestion that pubic hairs of the respondent were collected by the investigating officer, either on the night of 27/6/1999 or on 28/6/1999 or at any point of time. True, when the respondent was questioned under Section 313 of Code of Criminal Procedure he has stated that after his arrest his hairs were pulled. Respondent has not stated that his pubic hairs were pulled. He has also no case that those alleged pulling of hair was either on 27/6/1999 or on 28/6/1999. In such circumstances, Chief Judicial Magistrate was not justified in observing that possibility of hairs of respondent being collected by the police and placing them on the vaginal parts of the deceased cannot be ruled out. Such imagination is not permissible in law, especially when the CRRP 635/01 26 records show that after the arrest of the respondent he was produced before the learned Magistrate on 28/6/1999 at 6.30 p.m and learned Magistrate has specifically recorded that he has no complaint about the police ill- treatment. If pubic hairs of the respondent was collected as imagined by the learned Magistrate, respondent would have mentioned about it when he was produced before the Magistrate. Therefore, on the evidence I find no justification for the learned Magistrate to brush aside the scientific evidence based on unreasonable and baseless suspicion. 9. Evidence of Pws.1 to 3 were disbelieved by the learned Magistrate for the reason that if deceased had gone to take bath and incident occurred on her returning after taking bath as is the case set up by the CRRP 635/01 27 prosecution and PW2 had gone after 15 minutes, the case could not be true as deposed by Pws.1 to 3 and therefore, their evidence cannot be believed. The appreciation of evidence was perverse. There is no evidence that either PW1 or PW2 or PW3 were watching the clock and finding when exactly the deceased had gone to take bath and when thereafter PW2 had gone out as deposed by them. Only thing is that Pws.1 to 3 deposed that PW3 had gone 15 minutes after the deceased has gone. No arithmetical calculation could be made to disbelieve the evidence of Pws.1 to 3, as has been done by the learned Magistrate based on the local inspection conducted by him on the time spoken to by the witnesses. According to the learned Magistrate based on the local inspection, it will take ten minutes for a person to reach the CRRP 635/01 28 river from where the deceased had taken bath and therefore, if PW2 had gone to that place after 15 minutes and the deceased had gone 15 minutes earlier, she could not have taken bath and returned so as the enable PW2 to witness the incident and so he is not telling the truth. As stated earlier, evidence cannot be appreciated in that way. The time, spoken to by Pws.1 to 3, as 15 minutes is only their assessment and not based on any clock. It can only be appreciated in that light, especially when they are all rustic villagers and were not deposing with reference to any clock. 10. Question is whether evidence of Pws.1 to 3 is believable. I had gone through the entire evidence, and that of Pws.1 to 3 in particular. The incident occurred after 3 p.m and Ext.P1 FI statement was furnished by the CRRP 635/01 29 father at 5.15 p.m. The first information was furnished within two hours after PW1 came to know about the incident. In Ext.P1 FI statement, PW1 has stated that he rushed to the spot with PW3 on hearing the call of PW2 and when they reached the spot the deceased daughter was lying on the ground and her dress was lifted to the top and blood was coming from her