Kerala High Court acquits Assam migrant sentenced to death in rape and murder of 60-year-old

The Kerala High Court recently acquitted Parimal Sahu, a migrant labourer from Assam, who was convicted and sentenced to death by a trial court for the 2018 rape and murder of a 60-year-old widow. [State of Kerala v. Parimal Sahu].A Bench of Justices AK Jayasankaran Nambiar and Jobin Sebastian passed the verdict after noting that the evidence given by the victim's mentally and intellectually disabled son, on which the prosecution had relied heavily, had to be excluded since the son was incompetent to testify..The prosecution case was that Parimal Sahu brutally assaulted, raped and killed the 60-year-old widow who at the time was residing with her intellectually disabled son. Sahu rented a residence in the same compound as the victim. The FIR in the case was registered on the basis of a statement given by a relative of the deceased. The relative stated that when he reached the house of the deceased, her son said that it was Munna, a moniker for Sahu, who hit his mother on the head with a stone, dragged her to a room, and attacked her. The prosecution's case rested primarily on the son's testimony. However, the Court noted that even though a doctor had certified that the son had a mental age of 7½ years (he was biologically 35 years old), the trial court did not conduct a voir dire test (competency examination) before recording his testimony. "The non-conduction of voir dire examination will certainly create serious doubts regarding the competence of PW4 (the son) to depose and the reliability of his version, particularly when a vulnerable witness like PW4 is inherently susceptible to tutoring," the Court said.The Court clarified that although not conducting voir dire test is not always sufficient reason to reject a testimony outright, in its absence, it becomes the duty of the trial court as well as the appellate court to scrutinize the testimony with meticulous care. In this case, the Court noted that the son was able to give relatively coherent testimony in chief examination. However, when it came to cross-examination, he was unable to give cogent answers to even simple questions. This indicated that the son could have been tutored, the Court surmised. "The upshot of the above discussion is that the evidence of PW4, upon which the prosecution heavily relies to prove the occurrence of the incident, has to be excluded from consideration since PW4 is found to be incompetent to testify", the Court concluded. .The prosecution also relied on the statement allegedly given by Sahu to the doctors who examined him. The prosecution contended that the statutory bar on statements given to the police being used as evidence in trial would not apply to this case. However, the Court did not concur with this contention, noting that the Supreme Court has expanded the scope of "custody" to include situations where an accused is not formally arrested, but his freedom of movement is 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," the Court stated. .The prosecution also claimed that there was evidence of defensive wounds on Sahu's hands indicating that the victim had fought back. However, the Court noted that no skin cells from Sahu were found on the victim. Other samples collected also proved to be insufficient for DNA testing. ."The scientific evidence does not render any assistance to the prosecution to prove the involvement of the accused in the commission of the crime rather, it tends to help the accused in establishing his innocence," the Court said as it set side Sahu's conviction and set him at liberty from death row. .Parimal Sahu was represented by advocates Mitha Sudhindran, Shreya Rastogi, Nadia Shalin, Moulika Diwarkar, Riji Rajendran and Bhairavi SN.Special Public Prosecutor Ambika Devi S appeared for the State. .[Read Judgment]