Kerala High Court Acquits Assam Migrant Labourer Who Was Sentenced To Death In Rape-Murder Case Of 60 Yr Old

The Kerala High Court on Friday (October 31) acquitted Parimal Sahu, the migrant labourer from Assam, who was accused of the rape and murder of a 60-year-old widow in Puthanvelikkara Grama Panchayat in Ernakulam district in 2018.The Division Bench comprising Dr. Justice Jayasankaran Nambiar and Justice Jobin Sebastian reversed the finding of guilt by the Additional Sessions Judge, North Paravur and refused to uphold the death sentence passed. The prosecution allegation was that the appellant/accused, who was residing in the house adjacent to that of the deceased, entered into her house at about 11 pm, committed rape on her and hit her with a granite stone lying in the courtyard, thereby causing her death.It is also alleged that the accused then dragged the deceased into a bedroom and wrapped and tightened a cloth around her neck, ensuring her death. He also smeared blood of the t-shirt of the intellectually disabled son of the deceased to mislead the investigation and hid the stone in the premises of the house.He was accused of the offences under Sections 449, 376A, 302, and 201 of the Indian Penal Code. After trial, the Sessions found him guilty of all the offences and sentenced him to life imprisonment for the offence under Section 302. For the offence under Section 376A, the accused was sentenced to death, subject to confirmation by the High Court.While considering the criminal appeal preferred by the accused along with the Death Sentence Reference, the Court noted that PW1 and PW3, who respectively were the FIS informant and the neighbour of the deceased, had not directly witnessed the incident.It also remarked that the key witness in the case, PW4, who was the intellectually disabled son of the deceased, was not subject to the voir dire test and therefore, his statement cannot be relied upon.Referring to Section 118 of the Indian Evidence Act and placing reliance on the Apex Court decisions of Agniraj & Ors. v. State and State of MP v. Balveer Singh, the Court observed that the trial judge had a duty to assess the competence of PW4, who was a vulnerable witness.It also examined the evidence rendered by the doctor, who had assessed the IQ level of PW4 and found him within the range of moderate mental retardation with mental age of around 7 ½ years. The Court also made it clear that though the competency of PW4 was not examined, it does not mean the evidence is to be discarded but, in such circumstances, the testimony has to be scrutinised with meticulous care.Since there were contradictions in PW4's testimony during cross-examination and at times, the same was incoherent and incorrect, the Court felt that he could have been tutored.It observed:“Moreover, the fact that PW4, who appeared to withstand chief examination without much incoherence, gave incoherent and unintelligible answers during cross-examination strongly suggests that he was a tutored witness. In these circumstances, the failure of the trial judge to conduct a voir dire examination prior to the recording of the testimony of PW4 must be held to be a fatal irregularity.”On finding that PW4 was incompetent to depose, the Court next went on to consider the circumstantial, scientific, and medical evidence adduced in the case, including the extra judicial confession made by the accused.The confession was made by the accused to the doctors in the government medical college while he was brought for medical examination following his arrest. The appellant had contended that the same cannot be accepted in view of Section 26 of the Evidence Act since he was in police custody at the time.Accepting the contention, the Court observed that the confession cannot be relied on since it was made while in police custody. It remarked:“In the light of the recent pronouncements of the Supreme Court that have enlarged the scope of the phrase “custody” to embrace even such situations where an accused is not formally arrested, but his freedom of movement is nevertheless restrained by the police, the mere fact that the policemen who brought him to the hospital for medical examination were standing outside the examination room did not bring him outside the scope of the phrase 'person whilst in Police custody' for the purposes of S.26 of the Evidence Act.”At this juncture, the Court proceeded to examine the next material circumstance relied on by the prosecution in the case, which was the recovery of the stone used as the weapon of offence based on the statement of the accused.The appellant urged that the stone was recovered from a place accessible to the public and that there was sufficient material to show that the police was already at the place from which the stone was seized. Therefore, it was argued that it cannot be believed that the recovery was solely on the strength of the accused's statement.Agreeing with the appellant, the Court observed:“We are cognizant that it is fallacious to assume that a recovery made from an open or publicly accessible place...

Kerala High Court Acquits Assam Migrant Labourer Who Was Sentenced To Death In Rape-Murder Case Of 60 Yr Old

K. Salma Jennath

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