{"id":88375,"date":"2010-06-24T00:00:00","date_gmt":"2010-06-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-umeshan-v-on-24-june-2010"},"modified":"2017-08-18T01:11:33","modified_gmt":"2017-08-17T19:41:33","slug":"state-vs-umeshan-v-on-24-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-umeshan-v-on-24-june-2010","title":{"rendered":"State vs Umeshan. V on 24 June, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
State vs Umeshan. V on 24 June, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 635 of 2001()\n\n\n\n1. STATE\n                      ...  Petitioner\n\n                        Vs\n\n1. UMESHAN. V\n                       ...       Respondent\n\n                For Petitioner  :PUBLIC PROSECUTOR\n\n                For Respondent  :SRI.P.V.MURUGHAN\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :24\/06\/2010\n\n O R D E R\n          M.SASIDHARAN NAMBIAR,J.\n\n           ---------------------------------------------\n              CRL.R.P.NO.635 OF 2001\n           ---------------------------------------------\n               Dated      24th     June, 2010\n\n\n                          O R D E R\n<\/pre>\n
        Chief Judicial Magistrate, Kasargod<\/p>\n
in  C.C.19\/1999         acquitted              the      delinquent<\/p>\n
juvenile, who was alleged to have committed<\/p>\n
offences under Sections 376 and 302 of<\/p>\n
Indian Penal Code and set him at liberty.<\/p>\n
The order of acquittal is challenged by the<\/p>\n
State in this revision                 filed under Section<\/p>\n
38   of   Juvenile              Justice              Act,    1986.<\/p>\n
Respondent   is        the        delinquent             juvenile.<\/p>\n
Prosecution       case            is          that        deceased<\/p>\n
Prasanthi, daughter of PW1 and sister of<\/p>\n
Pws.2 and 3 had gone to take bath to the<\/p>\n
nearby river from the residential house, at<\/p>\n
about 3 p.m on 27\/6\/1999. Prasanthi was<\/p>\n
aged less than 14 years at that time. Pws.1<\/p>\n
CRRP 635\/01<\/p>\n
                         2<\/span><\/p>\n
to 3 were in the house.     After some time, PW2<\/p>\n
had gone along the   paramba. He found  deceased<\/p>\n
Prasanthi    lying   on   the  ground  and   the<\/p>\n
delinquent juvenile lying on her body. Finding<\/p>\n
PW2, the respondent ran away PW2 called      PW3<\/p>\n
aloud     to reach  there     and  followed  the<\/p>\n
respondent.   Respondent  was  caught,  when  he<\/p>\n
could not    run because of the marshy land. He<\/p>\n
was taken back to the place where Prasanthi’s<\/p>\n
body was found. By that time Pws.1 and 3 also<\/p>\n
reached there. PW2 entrusted the   respondent to<\/p>\n
PW3, who tied him to a pillar    of their house.<\/p>\n
PW1 called PW4, a relative and neighbour so as<\/p>\n
to take     Prasanthi to the hospital. PW1 took<\/p>\n
her in a jeep to Government District Hospital,<\/p>\n
Kanhangad.    PW8, doctor examined her and found<\/p>\n
that    she was  dead.  The  body  was  kept  at<\/p>\n
mortuary    and  intimation  was  given  to  the<\/p>\n
CRRP 635\/01<\/p>\n
                         3<\/span><\/p>\n
police. PW1      furnished Ext.P1 FI statement,<\/p>\n
which was recorded by Assistant Sub Inspector<\/p>\n
of Police, Bekal Police Station at 5.15 p.m on<\/p>\n
the same day based on which crime No.189\/99 was<\/p>\n
registered    under  Ext.P11  FIR.  PW15,  Circle<\/p>\n
Inspector     on  getting   information  of   the<\/p>\n
commission of the offences over the telephone<\/p>\n
from Bekal police station, reached the scene of<\/p>\n
occurrence    took  over  the  investigating  and<\/p>\n
prepared Ext.P2 scene mahazar and seized Mos.1<\/p>\n
to   8     and Mos.13 and  14   from  the  scene.<\/p>\n
Respondent who was found    tied on the pillar of<\/p>\n
the house of PW1, was arrested and under Ext.P3<\/p>\n
mahazar the rope with which respondent was tied<\/p>\n
was seized. Under Ext.P9 mahazar, Mos.9 and 10<\/p>\n
dresses worn by the respondent were seized on<\/p>\n
reaching the police station. At about 10 p.m he<\/p>\n
took the respondent to Medical College Hospital<\/p>\n
CRRP 635\/01<\/p>\n
                          4<\/span><\/p>\n
and submitted       a requisition    to conduct a<\/p>\n
potency     test.   It  was  conducted.  From   the<\/p>\n
Medical College Hospital mortuary on 28\/6\/1999,<\/p>\n
PW15       conducted   the inquest    and prepared<\/p>\n
Ext.P4 inquest report and     seized Mos.15 to 17,<\/p>\n
the    bangles      found on   the  hands  of  the<\/p>\n
deceased.     He  thereafter  sent  a  request  for<\/p>\n
conducting       postmortem    examination.     PW9<\/p>\n
Professor, Forensic Science and Police Surgeon,<\/p>\n
Medical College, Pariyaram        on 28\/6\/1999 at<\/p>\n
12.30 p.m conducted the autopsy and prepared<\/p>\n
Ext.P6     postmortem  certificate  and  noted  the<\/p>\n
anti mortem       injuries. On conducting autopsy<\/p>\n
PW9 found that death was caused due to manual<\/p>\n
strangulation       and    there  was  evidence  of<\/p>\n
sexual intercourse. The loose hairs found on<\/p>\n
the vagina were collected and pubic hairs cut<\/p>\n
from the body of the accused and the       deceased<\/p>\n
CRRP 635\/01<\/p>\n
                          5<\/span><\/p>\n
were also collected and sent for examination<\/p>\n
to   the   laboratory.   On  the  request  of the<\/p>\n
investigating     officer  on   the   night     of<\/p>\n
27\/6\/1999 delinquent juvenile was examined by<\/p>\n
PW9 and prepared Ext.P8 potency certificate and<\/p>\n
also     prepared Ext.P13 Medico legal certificate<\/p>\n
with the finding that no general or genital<\/p>\n
injury or positive     signs of sexual intercourse<\/p>\n
could     be  found  out.   Pubic  hairs  of   the<\/p>\n
delinquent juvenile collected was also sent for<\/p>\n
examination.     Ext.P7 report   was submitted by<\/p>\n
Scientific      Assistant   (Biology),    Forensic<\/p>\n
Science     Laboratory,  Thiruvananthapuram  after<\/p>\n
examination of the hairs to the effect that out<\/p>\n
of   five   hairs   which  were  the  loose  hairs<\/p>\n
collected from the vagina of the deceased, four<\/p>\n
hairs were human pubic hairs similar to the<\/p>\n
sample     pubic    hairs   collected   from   the<\/p>\n
CRRP 635\/01<\/p>\n
                          6<\/span><\/p>\n
respondent and the remaining one hair was human<\/p>\n
scalp hair which could not be compared with any<\/p>\n
other     scalp  hair,  as  no  such  sample  was<\/p>\n
furnished.     After completing the investigation,<\/p>\n
charge was laid. Accused being a juvenile, case<\/p>\n
was enquired by the Chief Judicial Magistrate,<\/p>\n
Kasargod in C.C.19\/1999. Respondent pleaded not<\/p>\n
guilty.     On the  side  of  the  prosecution  15<\/p>\n
witnesses were examined and 14 exhibits were<\/p>\n
marked and 18 material objects were identified.<\/p>\n
No   evidence   was  adduced  by  the  respondent.<\/p>\n
Learned     Chief  Judicial  Magistrate,  on   the<\/p>\n
evidence found him not guilty and acquitted<\/p>\n
him. It is challenged in this revision.<\/p>\n
           2. Learned   Public   Prosecutor   and<\/p>\n
Learned     counsel appearing for the  respondent<\/p>\n
were heard. When the revision was posted on<\/p>\n
16\/6\/2010,     learned  Public  Prosecutor     was<\/p>\n
CRRP 635\/01<\/p>\n
                        7<\/span><\/p>\n
heard.      At the time of arguments     learned<\/p>\n
counsel for respondent was asked to support the<\/p>\n
order of acquittal in view of the perverse<\/p>\n
appreciation of evidence by the Chief Judicial<\/p>\n
Magistrate. Learned    counsel sought time. When<\/p>\n
the   case   was posted    for today,    learned<\/p>\n
counsel appearing for the respondent submitted<\/p>\n
that mother of the delinquent juvenile wanted<\/p>\n
the case     to be transferred to another Bench.<\/p>\n
According to the   learned counsel it is because<\/p>\n
of the apprehension that family of the deceased<\/p>\n
has     some  connection  with   me.  There   is<\/p>\n
absolutely no basis for the said apprehension<\/p>\n
as I have nothing to do with the prosecution<\/p>\n
witnesses. Evidently, attempt is to avoid the<\/p>\n
Bench, on the apprehension that the order of<\/p>\n
acquittal may not be upheld. Such an attempt<\/p>\n
cannot be allowed to succeed. Therefore, the<\/p>\n
CRRP 635\/01<\/p>\n
                         8<\/span><\/p>\n
attempt to avoid the bench was rejected and<\/p>\n
learned     counsel appearing for the  respondent<\/p>\n
was heard.\n<\/p>\n
           3.  Learned  counsel appearing for the<\/p>\n
respondent     submitted   that   learned   Chief<\/p>\n
Judicial     Magistrate   has   appreciated   the<\/p>\n
evidence     in  the  proper  perspective,  after<\/p>\n
conducting a local inspection and sufficient<\/p>\n
reasons were shown why the prosecution case<\/p>\n
cannot be believed and in such circumstances,<\/p>\n
there is no reason to interfere with the order<\/p>\n
of acquittal.     Learned  counsel    would argue<\/p>\n
that evidence of Pws.1 to 3 that PW2 had seen<\/p>\n
the delinquent juvenile lying on the body of<\/p>\n
the deceased cannot be believed and case of PW1<\/p>\n
in Ext.P1 FI statement is that the deceased had<\/p>\n
gone to take bath, when the incident occurred<\/p>\n
and not when she was returning after taking<\/p>\n
CRRP 635\/01<\/p>\n
                         9<\/span><\/p>\n
bath and therefore, development in the case is<\/p>\n
to be properly appreciated. It was argued that<\/p>\n
respondent was     catching fish from the nearby<\/p>\n
river and as the real culprit ran away, local<\/p>\n
people     caught hold   of  the  respondent   and<\/p>\n
produced him before the police and he is not in<\/p>\n
any way connected with the incident. Learned<\/p>\n
counsel would argue that absence of any injury<\/p>\n
on   the   respondent  and  failure  to  find  any<\/p>\n
evidence    of  recent  sexual  intercourse,  when<\/p>\n
respondent    was  examined  on  the  same  night,<\/p>\n
indicate that respondent did not commit      rape<\/p>\n
and   he   is  innocent  and  the  case  has  been<\/p>\n
foisted due to the pressure of Senior police<\/p>\n
officer related to PW1. Learned     counsel would<\/p>\n
argue     that in  such  circumstances,  when  on<\/p>\n
appreciation of evidence the view taken by the<\/p>\n
Chief Judicial Magistrate is a reasonable    view<\/p>\n
CRRP 635\/01<\/p>\n
                         10<\/span><\/p>\n
which could be taken, in a revision against the<\/p>\n
order of acquittal, order of acquittal may not<\/p>\n
be interfered.\n<\/p>\n
           4. Fact that Prasanthi, a girl aged 14<\/p>\n
years was murdered on 27\/6\/1999 and she was<\/p>\n
subjected to rape and the cause of her death<\/p>\n
was    manual   strangulation are  not  disputed.<\/p>\n
Evidence of PW9, Professor of Forensic Science<\/p>\n
Medicine and Police Surgeon, Medical college,<\/p>\n
Pariyaram      who  conducted  the  autopsy   and<\/p>\n
prepared       Ext.P6    postmortem   certificate<\/p>\n
establish that at the time of autopsy he noted<\/p>\n
following antemortem injuries.<\/p>\n
           “1. Contused abrasion over an<\/p>\n
           area 9×5 cm on the front   of<\/p>\n
           neck, more towards the right<\/p>\n
           side.\n<\/p><\/blockquote>\n
CRRP 635\/01<\/p>\n
                          11<\/span><\/p>\n
           2. Multiple   small   abrasion,
\n           some of them curved, measuring
\n           in size from 0.3 cm to 0.5 cm
\n           on the undersurface of chin and
\n           upper  part  of  left  side  of
\n           neck.\n<\/p>\n
           3. Abrasion 0.2 x 0.1 cm over
\n           the left angle of jaw.\n<\/p>\n
               Underneath injuries 1 to 3,
\n           the strap muscles of the neck
\n           were  found   infiltrated  with
\n           blood. The soft tissues around
\n           the superior horn of thyroid
\n           cartilage  on  the  right  side
\n           were  also  infiltrated    with
\n           blood,  cartilages   and  hyoid
\n           bone were intact.\n<\/p>\n
           4. Abrasion 0.3 x 0.1 cm on
\n           the right side of chin, 2 cm
\n           below and outer to the angle of
\n           mouth.\n<\/p>\n
           5. Abrasion   0.7  x   0.1  cm,
\n           horizontal on the left cheek, 4
\n           cm outer to the mouth.\n<\/p>\n
CRRP 635\/01<\/p>\n
                          12<\/span><\/p>\n
           6. Abrasion 1.5 x 1 cm on the
\n           left inguinal region.\n<\/p>\n
           7. Two   small  scratch  marks.\n<\/p>\n
           1.5 cm each, closely placed and
\n           parallel to each other on the
\n           outer aspect of left thigh, 10
\n           cm above the knee.\n<\/p>\n
           8. Abrasion 0.5. x 0.3   cm on
\n           the front of left knee.\n<\/p>\n
           9. Abrasion 0.5 x 0.5 cm on
\n           the front of right leg. 2 cm
\n           below the knee.\n<\/p>\n
          10. Multiple   small   abrasions
\n          over an area 8×6 cm, involving
\n          the  uppermost   part  of  right
\n          thigh.\n<\/p>\n
          11. Multiple small abrasions and
\n          grazes over an area 19×10 cms
\n          involving   the    right   infra
\n          axillary area,   extending up to
\n          right breast.\n<\/p>\n
          12. Abrasion  9×4.5  cm  on  the
\n          back of trunk, 6 cm to the right
\n          of midline and 7 cms below the<\/p>\n
CRRP 635\/01<\/p>\n
                          13<\/span><\/p>\n
          angle of shoulder-blade.”\n<\/p>\n
Ext.P6 with the evidence of PW9 establish that<\/p>\n
cause      of  death  of    Prasanthi was   manual<\/p>\n
strangulation and she was subjected to rape<\/p>\n
PW9 deposed that     she could have been subjected<\/p>\n
to rape immediately before death or immediately<\/p>\n
after the death. Whatever it be, from Ext.P6<\/p>\n
and    evidence    of  PW9    it  is  conclusively<\/p>\n
established that cause of death of Prasanthi<\/p>\n
was manual strangulation and she was subjected<\/p>\n
to rape.\n<\/p>\n
           5. Ext.P1 FI statement was furnished by<\/p>\n
PW1 at 5.15 p.m on 27\/6\/1999 itself. In Ext.P1<\/p>\n
PW1 has narrated how he came to know about the<\/p>\n
incident and where she found the body and what<\/p>\n
all transpired therein. As per the version seen<\/p>\n
in Ext.P1, Pws.1 to 3 were in the house at<\/p>\n
about 3 p.m on 27\/6\/1999.        After taking noon<\/p>\n
CRRP 635\/01<\/p>\n
                         14<\/span><\/p>\n
meal    Prasanthi  had  gone  to  take  bath  with<\/p>\n
clothes to wash. After some time, PW2         went<\/p>\n
along the same way.     Evidence is that Prasanthi<\/p>\n
used to take bath in the nearby river, which<\/p>\n
lies east west and to the north of the house of<\/p>\n
PW1. It is not disputed that property of PW1<\/p>\n
up to the river is lying       in  four terraces.<\/p>\n
Body was found in between the river and the<\/p>\n
house     of  PW1,  on  the  way  to   the  river.<\/p>\n
According to the version in Ext.P1, PW2 found<\/p>\n
respondent lying on the body of      the deceased.<\/p>\n
He rushed to the spot. Respondent ran away.<\/p>\n
While     following him, PW2 called for PW3. Pws.1<\/p>\n
and 3 on hearing it, rushed to the spot. By<\/p>\n
that time, respondent was caught hold of by<\/p>\n
PW2 and taken to the place, where her body was<\/p>\n
lying.      Pws.1 and 3 found the body of the<\/p>\n
deceased    lying  with   injuries on   the  neck,<\/p>\n
CRRP 635\/01<\/p>\n
                         15<\/span><\/p>\n
motionless. PW2 entrusted the respondent with<\/p>\n
PW3 and the deceased was taken in a jeep to the<\/p>\n
hospital. PW3 tied the respondent to a pillar<\/p>\n
of the residential house. Later PW15     arrested<\/p>\n
him. PW1 deposed the fact personally known to<\/p>\n
him. PW2 who had seen the respondent lying on<\/p>\n
the body of the deceased and who had caught<\/p>\n
hold of the respondent, had given evidence as<\/p>\n
to what he had seen and how he caught hold of<\/p>\n
the respondent and how     he called  for PW3 and<\/p>\n
thereafter entrusted the respondent to PW3. PW3<\/p>\n
had also deposed     as to what he had seen   on<\/p>\n
rushing to the spot along with PW1 and also the<\/p>\n
fact     that respondent was entrusted to him  by<\/p>\n
PW2 and he tied the respondent with a rope on<\/p>\n
the    pillar   of  their  house.  Learned  Chief<\/p>\n
Judicial     Magistrate  did  not   accept  these<\/p>\n
evidence. Question is whether the evidence of<\/p>\n
CRRP 635\/01<\/p>\n
                         16<\/span><\/p>\n
Pws.1 to 3    could be brushed aside  as has been<\/p>\n
done by the learned Chief Judicial Magistrate.<\/p>\n
           6. Learned Chief  Judicial  Magistrate<\/p>\n
disbelieved the prosecution case firstly for<\/p>\n
absence     of any  injury on  the  body  of  the<\/p>\n
respondent or his     private parts, holding that<\/p>\n
as   the    deceased  sustained  injuries,  there<\/p>\n
should have been a scuffle which should have<\/p>\n
resulted     in  injury  on   the  body  of   the<\/p>\n
respondent. Learned Chief Judicial Magistrate<\/p>\n
also found that as the respondent was examined<\/p>\n
by the doctor on the same night and if he had<\/p>\n
subjected the deceased to rape, there would<\/p>\n
have been injuries to       his pennis    as the<\/p>\n
victim is only aged 14 years and there should<\/p>\n
have been traces of sexual intercourse on the<\/p>\n
pennis of the respondent and as there was no<\/p>\n
traces of any injury or of sexual intercourse<\/p>\n
CRRP 635\/01<\/p>\n
                         17<\/span><\/p>\n
as       proved  by  the  evidence  of  PW9,  the<\/p>\n
prosecution    case  cannot  be  believed.  Though<\/p>\n
Ext.P7 report which establishes that        pubic<\/p>\n
hairs collected at the time of autopsy by PW9<\/p>\n
from the body of the victim was found to be<\/p>\n
similar to the pubic hairs of the respondent<\/p>\n
collected by PW9 and sent for examination, and<\/p>\n
pubic hair of the respondent could not have<\/p>\n
been found on the private part of the victim<\/p>\n
unless     he is  the  person  who  committed  the<\/p>\n
rape, learned Chief Judicial Magistrate held<\/p>\n
that there was possibility of plucking hairs of<\/p>\n
the respondent and placing them on the body of<\/p>\n
the deceased to create evidence as respondent<\/p>\n
was in the custody of the police on the night<\/p>\n
of 27\/6\/1999 and pubic hairs of the victim was<\/p>\n
collected only on the next day. Question is<\/p>\n
whether     these are valid grounds to disbelieve<\/p>\n
CRRP 635\/01<\/p>\n
                         18<\/span><\/p>\n
the evidence of Pws.1 to 3 and the scientific<\/p>\n
evidence.\n<\/p>\n
           7.  Before considering the evidence of<\/p>\n
Pws.1 to 3, presence of pubic hairs of the<\/p>\n
respondent found on the private parts of the<\/p>\n
victim is to be appreciated. Ext.P7 report of<\/p>\n
the   Scientific   Assistant (Biology)  establish<\/p>\n
that all hairs in item Nos.1,2 and 3 were<\/p>\n
cleaned in soap solution and then in ether<\/p>\n
alcohol      solution and thereafter   they were<\/p>\n
examined      under   the microscope before and<\/p>\n
after bleaching. Item No.1      was the hairs of<\/p>\n
the victim collected by      PW9 at the time of<\/p>\n
autopsy.     Item No.2  was    five  loose  hairs<\/p>\n
collected by PW9 from the private parts of the<\/p>\n
victim at the time of autopsy. Item No.3 was<\/p>\n
pubic hairs of the respondent collected by PW9.<\/p>\n
Ext.P7 report shows that the pubic hairs of the<\/p>\n
CRRP 635\/01<\/p>\n
                        19<\/span><\/p>\n
deceased      cut  at the  time  of autopsy  and<\/p>\n
preserved and      sent for analysis varied in<\/p>\n
between between 0.3 c.m    and 2.9 cm. The root<\/p>\n
portions were found cut and the tips were found<\/p>\n
pointed. Out of the hairs in item No.2, four<\/p>\n
hairs which are described in    report as type-I<\/p>\n
hairs, were having a length of 4.9 cm, 5.1 cm,<\/p>\n
6 c.m and 6 c.m. Roots were     of telogen phase<\/p>\n
in three of the four hairs while it was of<\/p>\n
anagen     phase in the remaining one hair. Tips<\/p>\n
were found pointed in three of the four hairs<\/p>\n
while it was cut in the remaining one hair.<\/p>\n
Remaining one which was described as Type-II<\/p>\n
hair was a black coloured hair of length of 3<\/p>\n
cm and root was     of telogen phase and tip was<\/p>\n
found cut. On examination it was found to be   a<\/p>\n
scalp hair. Ext.P7 report shows that as the<\/p>\n
sample of     scalp hair of either the victim or<\/p>\n
CRRP 635\/01<\/p>\n
                          20<\/span><\/p>\n
the respondent was not sent, it could not be<\/p>\n
verified whether it relates to the victim or<\/p>\n
the respondent. Item No.3 is the pubic hair of<\/p>\n
the respondent. On examination it shows that<\/p>\n
root      portions were cut and tips were found<\/p>\n
pointed     in 11 out of the 20 hairs while the<\/p>\n
tips    were   found  cut  in  the  remaining  nine<\/p>\n
hairs.     The findings were stated as follows:<\/p>\n
             “1) Of the five hairs in item
\n          No.2,  four  hairs   (type-I)  were
\n          human public hairs similar to the
\n          sample pubic hairs in item No.3 and
\n          not similar to the sample pubic
\n          hairs in item No.1.\n<\/p><\/blockquote>\n
             2) Remaining one hair (Type-II)
\n          in item No.2 was a human scalp
\n          hair. Comparison of this hair was
\n          not possible as sample scalp hairs
\n          were not provided.”\n<\/p><\/blockquote>\n
Result of examination shows as follows:<\/p>\n
                 1) Of   the  five  hairs  in<\/p>\n
CRRP 635\/01<\/p>\n
                          21<\/span><\/p>\n
          item No.2 four hairs (Type-I) are
\n          human  public   hairs   which   are
\n          similar to the sample pubic hairs
\n          in item No.3\n<\/p>\n
                 2) The remaining one hair
\n          in item No.2 (Type-II) is a human
\n          scalp hair.\n<\/p>\n
Based on Ext.P7 it can conclusively be found<\/p>\n
that the pubic hairs of the respondent were<\/p>\n
found on the private parts of the deceased when<\/p>\n
autopsy was conducted by PW9. Question is how<\/p>\n
far the evidence on the basis of comparison of<\/p>\n
hair could be accepted.\n<\/p>\n
           8. Apex court in K.K.Jadav v. State of<\/p>\n
Gujarat (AIR 1966 SC 821) held:\n<\/p>\n
               “The   writers  of  medical
\n           jurisprudence,    have   stated
\n           that   from   the   microscopic
\n           examination of the hairs it is
\n           possible to say whether they
\n           are   of   the   same   or   of<\/p>\n
CRRP 635\/01<\/p>\n
                         22<\/span><\/p>\n
           different colours or sizes and
\n           from  the  examination it  may
\n           help in deciding     where the
\n           hairs come from.”\n<\/p><\/blockquote>\n
In Maghar Singh v. State of Punjab      (1975 (4)<\/p>\n
SCC 234) identification of the accused was made<\/p>\n
on the basis of scientific examination of the<\/p>\n
hair     found in the weapon of offence which was<\/p>\n
accepted by the court. This court in Mohanan<\/p>\n
Kani v. State of Kerala<\/a> (1992 (2) KLT 839) had<\/p>\n
considered the evidentiary value of the report<\/p>\n
based on comparison of the hair and held that<\/p>\n
scientific    evidence  is   reliable. Therefore,<\/p>\n
presence of the pubic hair of the respondent in<\/p>\n
the private parts of the deceased is definitely<\/p>\n
a satisfactory test to conclude that it was the<\/p>\n
respondent      who     committed    the    rape.<\/p>\n
Unfortunately,       learned    Chief    Judicial<\/p>\n
Magistrate ignored this vital evidence on the<\/p>\n
CRRP 635\/01<\/p>\n
                          23<\/span><\/p>\n
ground that pubic hair of the respondent could<\/p>\n
have been planted by the police. Learned Chief<\/p>\n
Judicial Magistrate dealt with this aspect as<\/p>\n
follows:\n<\/p>\n
           “It is pertinent to note   that
\n           at  this  juncture    that  the
\n           public hair was collected from
\n           the  body  of   the  delinquent
\n           juvenile by PW9 the doctor at
\n           about 10 p.m on 27\/6\/1999. At
\n           that  time   the  body  of  the
\n           Prasanthi was not even brought
\n           to the Medical College. It was
\n           in the custody of the police
\n           and  kept in  the  mortuary  of
\n           Kanhangad   hospital.       The
\n           delinquent juvenile was also in
\n           the custody of the police right
\n           from 7 p.m on 27\/6\/1999. So the
\n           possibility   of   the   police
\n           collecting  some   public  hair
\n           from the body of the delinquent
\n           juvenile and placing near the<\/p>\n
CRRP 635\/01<\/p>\n
                          24<\/span><\/p>\n
           vaginal    portion    of    the
\n           Prasanthi  cannot be ruled out
\n           from the circumstances.”\n<\/p><\/blockquote>\n
It is not known      how Chief Judicial Magistrate<\/p>\n
can arrive at such a conclusion. Ext.P7 shows<\/p>\n
that pubic hairs of the respondent collected by<\/p>\n
PW9 and examined at the laboratory were loose<\/p>\n
pubic hairs and pubic hairs     which were cut and<\/p>\n
preserved at the time of autopsy. Ext.P7 shows<\/p>\n
that root portion of the loose four pubic hairs<\/p>\n
are similar to that of the respondent. The root<\/p>\n
portion of those public hairs were not cut, as<\/p>\n
is the case that       pubic hairs of the victim<\/p>\n
collected by PW9 which was         marked at the<\/p>\n
laboratory as item No.1 or pubic hairs of the<\/p>\n
respondent, which were marked as item No.3. The<\/p>\n
root portion of all those hairs were cut while<\/p>\n
the root of the four pubic hairs of item No.2<\/p>\n
were not found cut. When PW15 investigating<\/p>\n
CRRP 635\/01<\/p>\n
                         25<\/span><\/p>\n
officer was examined, there was not even a<\/p>\n
suggestion that pubic hairs of the respondent<\/p>\n
were collected by the investigating officer,<\/p>\n
either     on the   night  of  27\/6\/1999 or  on<\/p>\n
28\/6\/1999 or at any point of time. True, when<\/p>\n
the respondent was questioned under Section 313<\/p>\n
of Code of Criminal Procedure he has stated<\/p>\n
that after his arrest his hairs were pulled.<\/p>\n
Respondent has not stated that his pubic hairs<\/p>\n
were pulled.     He has also no case that those<\/p>\n
alleged pulling of hair was either on 27\/6\/1999<\/p>\n
or on 28\/6\/1999. In such circumstances,    Chief<\/p>\n
Judicial    Magistrate    was  not justified  in<\/p>\n
observing    that   possibility   of  hairs   of<\/p>\n
respondent being collected by the police and<\/p>\n
placing    them  on  the  vaginal parts  of the<\/p>\n
deceased cannot be ruled out. Such imagination<\/p>\n
is not permissible in law, especially when the<\/p>\n
CRRP 635\/01<\/p>\n
                          26<\/span><\/p>\n
records     show  that after  the  arrest  of  the<\/p>\n
respondent he was produced before the      learned<\/p>\n
Magistrate     on  28\/6\/1999   at  6.30  p.m   and<\/p>\n
learned     Magistrate has  specifically  recorded<\/p>\n
that he has no complaint about the police ill-<\/p>\n
treatment.      If pubic hairs of the respondent<\/p>\n
was   collected    as imagined  by  the    learned<\/p>\n
Magistrate,     respondent  would  have  mentioned<\/p>\n
about     it  when  he  was  produced  before the<\/p>\n
Magistrate.     Therefore, on the evidence I find<\/p>\n
no justification for      the   learned Magistrate<\/p>\n
to brush aside the scientific evidence based on<\/p>\n
unreasonable and baseless suspicion.<\/p>\n
           9. Evidence   of  Pws.1   to   3  were<\/p>\n
disbelieved by the     learned Magistrate for the<\/p>\n
reason that if deceased had gone to take bath<\/p>\n
and     incident occurred on her returning after<\/p>\n
taking bath as is the case set up by the<\/p>\n
CRRP 635\/01<\/p>\n
                        27<\/span><\/p>\n
prosecution and PW2 had gone after 15 minutes,<\/p>\n
the case could not be true as deposed by Pws.1<\/p>\n
to 3 and therefore, their evidence cannot      be<\/p>\n
believed.    The  appreciation  of  evidence  was<\/p>\n
perverse. There is no    evidence that either PW1<\/p>\n
or PW2 or PW3 were watching the clock and<\/p>\n
finding when exactly the deceased had gone     to<\/p>\n
take bath    and when thereafter PW2 had gone out<\/p>\n
as deposed by them. Only thing is that Pws.1 to<\/p>\n
3 deposed that PW3 had gone 15 minutes      after<\/p>\n
the     deceased  has   gone.   No   arithmetical<\/p>\n
calculation could be made to disbelieve the<\/p>\n
evidence of     Pws.1 to 3, as has been done by<\/p>\n
the      learned Magistrate based on the local<\/p>\n
inspection conducted by him on the time spoken<\/p>\n
to by the witnesses. According to the     learned<\/p>\n
Magistrate based on the local inspection, it<\/p>\n
will take ten minutes for a person to reach the<\/p>\n
CRRP 635\/01<\/p>\n
                          28<\/span><\/p>\n
river from where the deceased had taken bath<\/p>\n
and    therefore, if PW2 had gone to that place<\/p>\n
after 15 minutes and the deceased had gone 15<\/p>\n
minutes earlier, she could not have taken     bath<\/p>\n
and returned so as the enable       PW2 to witness<\/p>\n
the incident and so he is not telling the<\/p>\n
truth. As stated      earlier, evidence cannot be<\/p>\n
appreciated in that way. The       time, spoken to<\/p>\n
by Pws.1 to 3, as       15 minutes is only their<\/p>\n
assessment and not based on any clock. It can<\/p>\n
only     be appreciated in that light, especially<\/p>\n
when they are all rustic villagers and were not<\/p>\n
deposing     with reference to any clock.<\/p>\n
           10. Question is whether     evidence of<\/p>\n
Pws.1 to 3 is believable. I had gone through<\/p>\n
the entire evidence, and that of     Pws.1 to 3 in<\/p>\n
particular. The incident occurred after 3 p.m<\/p>\n
and Ext.P1 FI statement was furnished by the<\/p>\n
CRRP 635\/01<\/p>\n
                        29<\/span><\/p>\n
father at 5.15 p.m. The first     information was<\/p>\n
furnished within two hours     after PW1 came to<\/p>\n
know      about the   incident.  In   Ext.P1   FI<\/p>\n
statement, PW1 has stated that he rushed to the<\/p>\n
spot     with PW3 on hearing the call of PW2 and<\/p>\n
when     they  reached  the  spot  the   deceased<\/p>\n
daughter was lying on the ground and her dress<\/p>\n
was lifted     to the top and blood was coming<\/p>\n
from her vagina and injuries were found on the<\/p>\n
thigh and neck. PW2 disclosed to PW1, that he<\/p>\n
had    found the respondent lying    on the body<\/p>\n
of the deceased.     If PW1 was not sure and was<\/p>\n
not told by PW2 that he found the deceased<\/p>\n
lying on the body     of the deceased, no father<\/p>\n
would report to the police within two hour of<\/p>\n
the    incident  that  respondent  committed the<\/p>\n
offence.     If PW1 is not sure that it was  the<\/p>\n
respondent      who  committed  the  offence  but<\/p>\n
CRRP 635\/01<\/p>\n
                         30<\/span><\/p>\n
somebody      else and    because of personal or<\/p>\n
political enmity with the respondent he wanted<\/p>\n
to rope in the respondent, he would only rope<\/p>\n
in   the respondent    along with the real culprit<\/p>\n
and will not try to shield the real culprit. If<\/p>\n
the   version   in  Ext.P1  FI  statement  is  not<\/p>\n
genuine and correct, the result would be that<\/p>\n
the real culprit who committed rape on        his<\/p>\n
minor      daughter  would go free and would be<\/p>\n
available in the locality hurting         him. No<\/p>\n
ordinary     human  being   would  allow  such   a<\/p>\n
situation.     Therefore,    there  is   intrinsic<\/p>\n
guarantee     in Ext.P1 that  it is the respondent<\/p>\n
who committed rape and murdered the deceased.<\/p>\n
Though Pws.1 and 3 were cross examined nothing<\/p>\n
was brought out     to disbelieve their evidence.<\/p>\n
There was no material contradiction in their<\/p>\n
evidence. When this aspect is appreciated in<\/p>\n
CRRP 635\/01<\/p>\n
                        31<\/span><\/p>\n
the     light  of  scientific  evidence   stated<\/p>\n
earlier, I have no hesitation to hold that it<\/p>\n
is the respondent    who committed the offence.<\/p>\n
Learned Chief Judicial Magistrate has given one<\/p>\n
more reason to disbelieve the prosecution case<\/p>\n
namely, absence of injuries on the    respondent<\/p>\n
and absence of finding of recent sexual    act.<\/p>\n
Learned Chief Judicial Magistrate   pre-supposed<\/p>\n
that there was a    scuffle and in that scuffle<\/p>\n
injuries    could  have   been caused   to   the<\/p>\n
respondent    and  therefore,  absence  of   the<\/p>\n
injuries    is  a   ground  to  disbelieve   the<\/p>\n
evidence. Learned    Magistrate also found that<\/p>\n
as the     minor girl was raped  injuries would<\/p>\n
have     been  found  on  the  pennis   of  the<\/p>\n
respondent.    Learned  Magistrate has   omitted<\/p>\n
to take note of the medical evidence. PW9 was<\/p>\n
cross examined with reference to the absence of<\/p>\n
CRRP 635\/01<\/p>\n
                          32<\/span><\/p>\n
injuries     on the pennis of the respondent. PW9<\/p>\n
the expert asserted that injuries on the pennis<\/p>\n
need not be     there. On the absence of traces of<\/p>\n
spermatozoa     on the pennis, PW9 deposed that if<\/p>\n
pennis was washed it will not be there. There<\/p>\n
was sufficient opportunity to the respondent to<\/p>\n
wash the pennis before his examination by PW9.<\/p>\n
Hence these are not also valid ground to acquit<\/p>\n
the   respondent    or  to  doubt  the prosecution<\/p>\n
case.      On appreciating the entire  evidence, I<\/p>\n
have no hesitation to hold that appreciation of<\/p>\n
evidence was perverse. On a proper appreciation<\/p>\n
of evidence,     it can only be found that  it was<\/p>\n
the    respondent   who   committed  rape on   the<\/p>\n
deceased      and  also   caused   her  death   by<\/p>\n
strangulation. Order of acquittal can only be<\/p>\n
set aside.\n<\/p>\n
           11. Under Section 21 of the Juvenile<\/p>\n
CRRP 635\/01<\/p>\n
                         33<\/span><\/p>\n
Justice Act, 1986 where a juvenile court is<\/p>\n
satisfied    on   inquiry  that  a  juvenile  has<\/p>\n
committed    an   offence,  then  notwithstanding<\/p>\n
anything to the contrary contained in any other<\/p>\n
law for the time being in force,     the juvenile<\/p>\n
court may     if it so thinks fit, he could only<\/p>\n
act as provided under clause (a) to (e). The<\/p>\n
Juvenile     Justice  (Care  and   Protection  of<\/p>\n
Children) Act, 2000 which came into force on<\/p>\n
22\/8\/2006, Section 15 of the Act provides the<\/p>\n
orders that may be passed regarding a    juvenile<\/p>\n
in conflict     with law as he cannot be sent to<\/p>\n
prison.     In  such   circumstances,  order   of<\/p>\n
acquittal     is to be set aside and the case is<\/p>\n
to be remitted to the Juvenile Justice Board to<\/p>\n
pass     appropriate  order  as   provided  under<\/p>\n
Section    15   of  Juvenile  Justice  (Care  and<\/p>\n
Protection of Children) Act, 2000.<\/p>\n
CRRP 635\/01<\/p>\n
                          34<\/span><\/p>\n
           Revision is allowed. Order of acquittal<\/p>\n
passed     by   the  Chief   Judicial  Magistrate,<\/p>\n
Kasargod      in   C.C.19\/1999   is   set   aside.<\/p>\n
Respondent juvenile in conflict with law found<\/p>\n
guilty of the offence under Sections 376 and<\/p>\n
302 of Indian Penal Code. Case is remanded to<\/p>\n
Juvenile     Justice   Board,  Kasargod   to  pass<\/p>\n
appropriate order as provided under Section 15<\/p>\n
of Juvenile Justice (Care and Protection of<\/p>\n
Children) Act, 2000 in accordance with law.<\/p>\n
                              M.SASIDHARAN NAMBIAR,
\n                                         JUDGE.\n<\/p>\n
uj.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court State vs Umeshan. V on 24 June, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 635 of 2001() 1. STATE … Petitioner Vs 1. UMESHAN. V … Respondent For Petitioner :PUBLIC PROSECUTOR For Respondent :SRI.P.V.MURUGHAN The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR Dated :24\/06\/2010 O R D E R M.SASIDHARAN NAMBIAR,J. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-88375","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nState vs Umeshan. 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