Statements Made U/s. 313 CrPC Can Only Be Used Against Accused If There Is Other Evidence To Hold Him Guilty- Kerala HC

The Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran while holding so, observed –

"Hence the statements made under S.313 are not substantive evidence and the same can be used against the accused, only if there is other evidence to find him guilty. The statement under S.313 cannot be considered in isolation and can only be considered in conjunction with the evidence adduced by the prosecution."

In this case, it was alleged by the Prosecution that the offence of rape was committed on a 60-year-old woman which was also allegedly witnessed by two minor children. The deceased was also 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 was found guilty of the aforesaid offences by the Trial Court and was convicted and sentenced to three years rigorous imprisonment 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.

Advocate Vishnuprasad Nair appeared for the Appellant-Accused while Special Government Pleader Ambikadevi S. appeared for the Respondents before the Court.

The Court deprecated the practice of recalling witnesses repeatedly without reasonable cause and without an order under Section 311 CrPC indicating that the witness to be re-examined for the purposes of securing the ends of justice.

The Bench in this context placed reliance on Mannan Shaikh v. State of West Bengal [(2014) 13 SCC 59] in which the Apex Court had examined the manner of exercise of power under Section 311, 243 (2) & 246(5) for recall and further recall of witness. 'Essential to just decision of case' conferred wide powers on Court which had to be exercised with circumspection, only for that objective, was the finding. It was held by the Apex Court that the power should not be exercised in a manner prejudicing the accused or enabling the prosecution to fill up a lacuna, whether it be for the one or the other; ie; for a just decision or to fill up a lacuna, would depend on the facts and circumstances of each case.

The Court noted that were umpteen contradictions and omissions and the testimony had been embellished and improved at every stage and thus observed –

"There is no clear testimony as to the incident and there are prevaricating statements made, which give rise to a very reasonable doubt in our minds about the reliability and credibility of the victim/ prosecutrix. We are also of the opinion that the learned trial Judge ought to have exercised more caution as also employed circumspection in allowing the claim under S.311 of the Cr.P.C. to recall the witness, who is the prosecutrix, after 7 months from the first examination on the grounds stated."

The Court noted that the victim did not make any allegation against the two minor children who were in the shed along with the accused and were also not made witnesses in the case.

The Bench further also noted that during the medical examination of the victim there was no evidence of rape.

"The medical evidence neither indicate rape nor the bleeding injury on the head, spoken of by PW1 at the third instance of her examination. Some other witnesses also spoke of it, but not noticed by any of the doctors. We already noticed that even PW2, the husband, did not speak of a head injury. The medical evidence does not support the prosecution case and at best there were injuries caused, justifying the charge under Section 324, but nothing to indicate an offence under Section 376," the Court further added.

The Court also held, "Even the testimony of PW1 speaks nothing of a penetration and the only sign is the bite marks on the breasts; which in isolation is a sexual assault, but not amounting to rape."

While holding that the entire evidence led by the prosecution is full of inconsistencies, the Court in addition observed-

"PW1, the victim, does not have a consistent case of what transpired and her testimony is full of prevarications and embellishments which raises serious doubts about the incident complained of. The victim also had different versions of the words spoken by the accused. The medical evidence does not tally with the testimony and there is no evidence of rape. The different versions of how the assault on the victim was perpetrated, does not tally with the medical evidence of her injuries. The bleeding injury was not noticed by the expert witnesses and even her own husband failed to notice the injury on the head. The scientific evidence though speaks of the presence of spermatozoa on the dress of the victim, we cannot place any reliance on it."

The Court also held that when charges under IPC are not proved definitely there cannot be a charge found under the SC & ST (POA); which also was based on the alleged sexual assault.

"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," the Court held.

Thus, the Court held that the Prosecution did not prove beyond reasonable doubt, the charges leveled against the accused and acquitted him and directed for his release, and allowed the appeal.

Cause Title – Ratheesh v. State of Kerala

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