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2021 Supreme(Online)(KER) 21967
HIGH COURT OF KERALA
K.HARIPAL, J
MARIYAPPAN @ MARI – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/514/2020
ADV. PRASANTH M.P.(STATE BRIEF)
A conviction cannot stand on evidence based on hostile witnesses and inadequately admissible expert reports under the relevant provisions of the Cr.P.C.
Headnote:
Criminal - Sexual Offences - IPC 376, POCSO Act Sections 5, 6 - Summary: The court reviewed the conviction under the IPC and POCSO Act, highlighting the significance of admissible evidence under Section 293 Cr.P.C. The conviction was overturned due to lack of reliable evidence, as key witnesses turned hostile, leaving the prosecution's case unsupported.
Fact of the Case:
The appellant was accused of raping a minor, resulting in pregnancy. Despite medical evidence suggesting rape, all material witnesses turned hostile, and the conviction relied heavily on a scientifically disputed DNA profile.
Issues: The primary issues revolved around the admissibility of evidence presented, particularly the DNA report, and the reliability of testimony from witnesses who turned hostile.
Ratio Decidendi: The court ruled that the conviction was improperly based on a DNA report that lacked proper admissibility under the Cr.P.C., particularly Section 293, as the author of the report was not an expert recognized under the law.
Final Decision: The conviction was set aside and the appellant was released.
JUDGMENT
This is an appeal preferred under Sections 374 (2) and 383 of the Code of Criminal Procedure , hereinafter referred to as the Cr.P.C., challenging the legality and correctness of the judgment of the Additional Sessions Court-I, Alappuzha, who is the Special Judge for trial of offences under the Protection of Children from Sexual Offences Act & Children's Court, Alappuzha, in S.C. No.91/2018. The appellant faced charges under Section 376 (2)(i)(j)(n) of the Indian Penal Code , hereinafter referred to as the IPC , and Section 5 (j)(ii)(l)(q) read with Section 6 of the, 2012, hereinafter referred to as the PoCSO Act. The precise allegation against the appellant is that on 13.09.2016 the appellant had tied a yellow thread around the neck of the 15 year old minor victim, CW1, at the Pudalamadaswamy temple at Marukalthalai in Nagarkovil, making her believe that he had married the girl and from that day onwards till 11.08.2017, for about eleven months, stayed with her and committed rape on her. The act of sexual offence started from house No.123 of Marukathalai colony in Nagakovil district in Tamil Nadu State continued till 11.08.2017 in house No.VII/127 of Koothappally colony in Kidangara village; consequent to the said continuous act of sexual intercourse, CW1 became pregnant; she was also subjected to continuous physical harassment and thus he committed offence punishable under the above stated provisions and also under Section 75 of the Juvenile Justice (Care and Protection of Children) Act , 2015. Crime 530/2017 of Ramankari police station was registered on the basis of first information statement given by the minor girl. After investigation, the Circle Inspector, Pulinkunnu police station laid charge sheet before the Special Judge, on the basis of which S.C. No.91/2018 was taken on file. The appellant was arrested on
16.09.2017 and ever since he continues in judicial custody.
2. After completing the procedural formalities when the charge was framed, read over and explained, the appellant pleaded not guilty. He was defended by a counsel of his choice. Seventeen witnesses were examined on the side of the prosecution as PWs 1 to 17. Exts.P1 to P16 were marked. On conclusion of evidence, when examined under Section 313 Cr.P.C., he denied all the incriminating materials. As the learned Special Judge found that it is not a fit case for acquittal under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence; no evidence was adduced. Thereafter, by the impugned judgment, repelling the plea of innocence, the Special Judge found the appellant guilty of offences under Section 376 (2)(i)(j)(n) of the IPC and Section 5 (j)(ii)(l)(q) read with Section 6 of the PoCSO Act. After hearing him on sentence, the following sentences were imposed on him:-
a) Under Section 376 (2)(i) of IPC , he is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, and in default to undergo simple imprisonment for two years;
b) Under Section 376 (2)(j) of IPC , he is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, and in default to undergo simple imprisonment for two years;
c) Under Section 376 (2)(n) of IPC also, the very same sentences are imposed on him, and substantive sentences are directed to run concurrently.
The right of set-off for the period already undergone in judicial custody is also mentioned. No separate sentence is awarded under Section 5 (j) (ii) (l)(q)read with Section 6 of the PoCSO Act. The appellant is suffering the sentence in Central Prison, Poojappura, Thiruvananthapuram, from where this memorandum of appeal was preferred. Following the receipt of the appeal memorandum, Adv.Sri.M.P. Prasanth was appointed as the State Brief. As the appellant is continuing in custody ever from the date of arrest, the appeal has been taken out of turn.
3. I heard Sri.M.P.Prasanth for the appellant and also Adv.Sri.K.B. Udayakumar, the Senior Public
