Johnson John, J.

1. This appeal is field under Section 374(2) Cr.P.C., by the sole accused in S.C. No. 1070 of 2016 on the file of the Additional Sessions Judge for the Trial of Cases relating to Atrocities and Sexual Violence against Women and Children, Thiruvananthapuram challenging the conviction and sentence against him for the offence punishable under Section 376(2)(j) of IPC as per the judgment dated 17.07.2018

2. The prosecution case is that the accused, a member of the forward caste, committed rape on the victim, a deaf and dump lady aged 78 years, suffering from mental illness who is a member of the Scheduled Caste. The incident is alleged to have occurred in a shed attached to house No. IV/646 of Nagaroor Grama Panchayat at about 6 p.m. on 10.11.2015.

3. On the basis of Exhibit P1, First Information Statement of PW2, the sister of the victim, Exhibit P11, First Information Report, was registered by PW11, Station House Officer of Kilimanoor Police Station and PW14, the Deputy Superintendent of Police, Attingal, conducted the initial investigation and thereafter PW15, the then Deputy Superintendent of Police, Attingal, completed the investigation and filed the final report before the Judicial First Class Magistrate Court, Attingal

4. After committal, when the accused was produced before the trial court, charge was framed against him for the offences punishable under Section 376 IPC and Section 3(2) (v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and when the accused pleaded not guilty, the prosecution examined PWs 1 to 15 and marked Exhibits P1 to P20 and MOs I and II to prove the charge against the accused.

5. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C regarding the incriminating circumstances proved against him in the evidence of prosecution. The accused denied all those circumstances and maintained his innocence.

6. Since the trial court found that it is not a fit case to acquit the accused under Section 232 Cr.P.C, he was asked to enter on his defence and adduce evidence in support thereof. From the side of the accused, DW1 was examined.

7. On a consideration of the oral and documentary evidence on record and after hearing both sides, the court below found that the prosecution has not proved the offence under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the accused and hence, he is acquitted of the said offence. But the court below found the accused guilty of the offence under Section 376(2)(j) of IPC and he is convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for two years for the offence under Section 376(2)(j) of IPC.

8. Heard Sri. Arun Chand, the learned counsel for the appellant and Smt. Sheeba Thomas, the learned Public Prosecutor.

9. The point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused by the trial court are sustainable or not.

10. The learned counsel for the appellant argued that there is no reliable evidence to show that the victim is an unsound person and the Investigating Officer has not complied the mandate of Section 154 Cr.P.C and sub-Section 5A of Section of 164 Cr.P.C and since the prosecution omitted to record the statement of the victim, the accused could not cross examine the victim and hence, there was no fair trial. It is also argued that the evidence of PWs 1 and 2 regarding the occurrence does not tally and that there are serious contradictions and inconsistencies in their evidence regarding the occurrence . It is pointed out that there is no scientific or medical evidence in support of the evidence of PWs 1 and 2 regarding the alleged incident and the prosecution has also no explained the delay in registering the crime and therefore, the accused is entitled for the benefit of reasonable doubt.

11. The learned Public Prosecutor argued that the prosecution has adduced clear evidence to show that the victim is an unsound person suffering from mental illness and the trial court was also satisfied that she is not competent to testify as a witness and therefore, the contention of the appellant regarding non-compliance of Sections 154 and 164 Cr.P.C is not sustainable. It is also pointed out that PWs 1 and 2 are direct witness to the occurrence and even though they were seriously cross examined, nothing material was brought out to discredit their evidence regarding the act committed by the accused and in view of the reliable and convincing evidence of PWs 1 and 2 regarding the occurrence, the impugned judgment of the court below is only to be confirmed.

12. PW1 is a neighbour of the victim and the accused. He deposed that the victim is suffering from mental illness and she used to wander through the nearby properties and used to pick twigs and firewoods from the rubber estate. According to PW1, at about 6 p.m., on 10.11.2015, he heard a sound of murmur and moaning from the firewood shed attached to the house of the sister of the accused and when he reached there, he saw the accused and the victim lying in a naked condition and he informed the matter to the sister of the victim. According to PW1, when he reached the place of occurrence again along with the sister of the victim, the accused was conducting sexual intercourse with the victim by lying over her body.

13. The evidence of PW1 shows that the accused has not noticed their presence and only when he beat the accused twice with a twig, he released the victim and stood up and left the place after wearing his dress. PW1 also stated that the sister of the victim had taken the victim along with her to their house.

14. The younger sister of the victim is examined as PW2 and she deposed that her elder sister is suffering from mental illness and she used to wander in the locality. According to PW2, they have no other relatives and that the accused is residing in the house of his sister near to their house. During 2015, her neighbour Manoharan informed her that the accused is lying over the body of her sister in the shed attached to the house of the sister of the accused and when she reached the place along with Manoharan, they saw the accused lying over the naked body of her sister and subjecting her to sexual intercourse. The evidence of PW2 shows that the accused was not able to notice their presence because of what he was doing and only when Manoharan beat him with a twig, he stood up and left the place with his dress. PW2 stated that she had taken her sister to their house and her sister is unable to differentiate the courtyard of their house from the adjacent properties. When a question was put regarding the delay in informing the police, the witness stated that she is a lady and there was nobody else to help them and it is also difficult for her to leave her sister alone.

15. According to PW2, when she preferred the complaint, police came there and took the victim to hospital. PW2 also identified the accused before the court. PW2 identified her thumb impression in Exhibit P1 First Information Statement given to the police.

16. PW3 is a neighbour of the accused and the victim and his evidence shows that he signed Exhibit P2 scene mahazar and Exhibit P3 mahazar prepared by the police for the recovery of the dress of the victim as a witness. The evidence of PW3 also shows that he signed Exhibit P4 mahazar prepared by the police for the recovery of the dress of the accused as a witness and he identified his signature in Exhibits P2 to P4 mahazars before the court.

17. PW4 is the sister of the accused and her evidence shows that the accused is staying in a firewood shed attached to her house and the victim and her sister are also residing nearby. PW4 stated that the victim is a mental patient and that the accused is in the habit of consuming alcohol.

18. The learned counsel for the appellant argued that the evidence of PWs 1 and 2 regarding the occurrence does not tally and that the evidence of PW1 is that when he saw the accused and the victim lying in a naked condition in the firewood shed, he informed the matter to PW2, who is the sister of the victim and thereafter, they reached the place of occurrence together. But, in Exhibit P1 First Information Statement of PW2, it is not seen mentioned that PW2 proceeded to the place of occurrence on getting information from her neighbour Manoharan and what is stated is that on 10.11.2015 at about 4 p.m. the victim went to the nearby rubber estate for collecting firewood and when she failed to return, the witness went in search of her and when the witness reached near the house of Devarajan, she heard a noise and when she reached that place, she saw the accused Devarajan lying on the body of the victim and on hearing her cries, her neighbour Manoharan reached there and beat the accused with a twig and thereupon, the accused Devarajan stood up and left the place.

19. In cross examination, PW2 stated that she saw the incident after Manoharan informed her about the incident and called her to that place and when they reached there, the accused Devarajan was lying on the body of her sister and she told these facts to the police. From the evidence of PW2 in cross examination, it can be clearly understood that when her sister, who went for collecting firewoods, failed to return, PW2 went in search of her and she also heard a noise from the shed attached to the house of the accused Devarajan and at that time, her neighbour Manoharan also called her and informed her that the accused is lying on the body of the victim in the nearby shed. It is pertinent to note that PW2 is an illiterate village woman aged about 73 years and the minor variations in the sequence of events that occurred on the date of occurrence are only natural. It is well settled that normal discrepancies in evidence are those which are due to normal errors of observations and normal errors of memory due to lapse of time and such discrepancies and errors will always be there, however honest and truthful a witness may be. It cannot be disputed that material discrepancies are those which are not normal and not expected of a normal person.

20. In State of Uttar Pradesh vs. M.K. Anthony [AIR 1983 SC 48], the Honourable Supreme Court held that minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. It is well settled that when a material witness is examined at length, it is possible for him to make some discrepancies and no true witness can possibly escape from making some discrepant details.

21. On a careful re-appreciation of the entire evidence of PWs 1 and 2, we find that there is no material discrepancy and that their evidence regarding the occurrence tallies on all material particulars. The learned counsel for the appellant invited our attention to the thumb impression in Exhibit P1 First Information Statement and pointed out that even though in the beginning portion of Exhibit P1, it is stated that the said statement is that of PW2, in the concluding portion of Exhibit P1, the name of the victim is recorded near the thumb impression and in the absence of a previous statement or complaint from the side of the victim, there is reason to suspect the identity of the person who furnished Exhibit P1 First Information Statement.

22. However, the learned Public Prosecutor pointed out that Exhibit P1 statement of PW2 was recorded by PW13, Woman Civil Police Officer of Kilimanoor Police Station and PW13 has clarified in chief examination itself that by mistake, she recorded the name of the victim instead of the name of PW2 in the concluding portion of Exhibit P1 where she obtained the thumb impression of PW2. In cross examination, PW13 also clarified that she has read over the statement to the informant after recording the same and since the informant is illiterate and was not able to sign the statement, she obtained her thumb impression.

23. It is in evidence that PW2 is an aged rustic village woman and in view of the evidence of PW13 that it was by mistake she recorded the name of the victim towards the end of the First Information Statement given by PW2, we find that the discrepancy in this regard will, in no way, affect the trustworthiness of the evidence of PW2 before the court regarding the occurrence.

24. The learned counsel for the appellant argued that there is no scientific or medical evidence in support of the evidence of PWs 1 and 2 regarding the occurrence. The Assistant Professor of SAT Hospital, Thiruvananthapuram who examined the victim on 18.11.2015 at 2.15 p.m. was examined as PW6, and the certificate of examination is marked as Exhibit P6. The evidence of PW6 and Exhibit P6 shows that no external injuries were noted. According to PW6, she was unable to communicate with the victim as she was mentally ill and further the examination was conducted only on 18.11.2015 even though the alleged occurrence was on 10.11.2015 and therefore, even if there was any redness, abrasion or contusion on her private parts, it could have subsided within that time. PW6 further deposed that since the victim is a married lady, she could not record a specific opinion regarding recent penetration as the victim was examined after 8 days of the alleged incident.

25. The evidence of PW14, the then Deputy Superintendent of Police, Attingal, shows that he took charge of the investigation of this case only on 23.11.2015. Exhibit P11 FIR and the evidence of PW11, the then Station House Officer of Kilimanoor Police Station, shows that after registering the FIR on the basis of Exhibit P1 First Information Statement on 18.11.2015, she has taken steps for medical examination of the victim and therefore, it is not in dispute that even though the alleged occurrence was on 10.11.2015, the medical examination of the victim was conducted on 18.11.2015.

26. The evidence of PW14 and Exhibit P20 report from the Forensic Science Laboratory shows that seminal stains are not detected in the dress of the victim and the accused forwarded as per Exhibit P19, forwarding note dated 09.02.2016. According to PW14, he recovered the dress of the victim as per Exhibit P3 mahazar dated 03.12.2015 and the dress of the accused as per Exhibit P4 mahazar dated 07.01.2016. Therefore, it can be seen that the seizure of the dress of the victim and that of the accused are after several days of the occurrence, and in that circumstance, the absence of medical and scientific evidence cannot be accepted as a ground to reject the evidence of PWs 1 and 2 regarding the occurrence.

27. The learned counsel for the appellant argued that the Investigating Officer ought to have recorded the statement of the victim and the non compliance of the mandate of Section 154 Cr.P.C and sub- Section 5A of Section 164 Cr.P.C has caused prejudice to the accused, in as much as he lost the opportunity to cross examine the victim. But, in this case, the evidence of PWs 1, 2 and 4 clearly shows that the victim is a person of unsound mind suffering from mental illness and the said evidence of PWs 1, 2 and 4 is also supported by the evidence of PW6, who examined the victim on 18.11.2015 and issued Exhibit P6 medical certificate. The evidence of PW6 clearly shows that she could not communicate with the victim as she is mentally ill. The impugned judgment and the proceedings of the trial court shows that as per the direction of the trial court, the Superintendent of Mental Health Centre, Thiruvananthapuram, made arrangements for examining the victim by a Psychiatrist and the report is marked as Exhibit P5.

28. PW5 was the Junior Consultant in Psychiatry, Mental Health Centre, Thiruvananthapuram, who examined the victim on 16.12.2017. PW5 deposed that on his examination, it was found that the victim is disoriented, non-co-operative and has poor insight and poor judgment. According to PW5, the victim was showing the symptoms suggestive of organic psychosis disorder and she has no insight about the court proceedings and that she needs regular psychiatric treatment. In that circumstance, we find no reason to disagree with the finding of the court below that the victim, suffering from mental illness is not a competent witness under Section 118 of the Indian Evidence Act and we find no reason to disagree with the said finding and therefore, we also find no merit in the argument of the learned counsel for the appellant that there is non-compliance of the mandate of Section 154 and sub-Section 5A of Section 164 Cr.P.C.

29. In State of Karnataka v. K.Yarappa Reddy [AIR 2000 SC 185 [LQ/SC/1999/963] ], the Hon'ble Supreme Court held thus:-

“it can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise, criminal trial will plummet to the level of the Investigating Officer ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by Investigating Officers. Criminal justice should not be made the casualty for the wrongs committed by the Investigating Officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true the Court is free to act on it albeit Investigating Officer's suspicious role in the case.”

30. When the accused was questioned under Section 313 Cr .P.C., he stated that the victim trespassed into his shed and attempted to steal coconut and its fronds and there occurred a quarrel in which PW1 intervened and revolted against the accused and his family members and on the instigation of PW1, Manoharan, PW2, Sarada, also came to the scene and at that time, PW1 Manoharan uttered obscene words against the accused and family members and also threatened the accused that he will not allow him to live peacefully.

31. DW1 is the witness examined from the side of the defence. But, her evidence does not tally with the case put forward by the accused at the time of 313 questioning. According to DW1, she is a neighbor of the accused. She stated that PW2, Sarada, used to take twigs and coconuts from the shed of the accused and when the accused questioned the same, there occurred a quarrel in which PW1, Manoharan, also intervened and threatened the accused. In cross examination DW1 stated that she did not know the name of the sister of PW2 and that she had no acquaintance with her. According to DW1, police came there to investigate the complaint of PW2 that the accused caused hurt to PW2. From the evidence of DW1, it is clear that she has no acquaintance with the victim and her evidence regarding the alleged quarrel between the accused and PW2 does not tally with the version of the accused in his 313 statement. Therefore, we find that the evidence of DW1 is not at all reliable and the same will, in no way, support the case set up by the defence.

32. We have already found that the evidence of PWs 1 and 2 regarding the occurrence is reliable and trustworthy and there is no reason for them to falsely implicate the accused in this case. The evidence of PWs 1 and 2 would show that when they reached the place of occurrence, the accused was engaged in sexual intercourse with the victim and therefore, he was unable to notice the presence of PWs 1 and 2 and only when PW2 beat the accused with a twig, the act of sexual intercourse was intercepted and therefore, the accused had to leave the victim before completion of the act and emission of semen and in that circumstance, the absence of seminal stains in the dress as per Exhibit P20 FSL report cannot be accepted as a ground to disbelieve the evidence of PWs 1 and 2 regarding the occurrence.

33. In view of the definition of ‘rape’ in Section 375 IPC, even partial or slightest penetration of the male organ into the vagina of a woman with or without emission of semen could constitute rape and further, clauses 5 and 7 of Section 375 IPC would show that a person of unsound mind is not capable to give consent and since it is in evidence that the victim in this case is a person of unsound mind, we find that the prosecution has succeeded in adducing reliable evidence to prove that the accused committed rape on the victim as alleged and therefore, we find that the court below has rightly convicted the accused for the offence under Section 376 (2)(j) of IPC.

34. On a careful re-appreciation of the entire evidence and considering the nature, gravity and the circumstances of the commission of the offence, we also find no reason to interfere with the sentence imposed on the appellant/accused and therefore, we find that this appeal is devoid of any merit and is liable to be dismissed.

35. In the result, this appeal is dismissed.