BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRL.A.(MD) No.653 of 2007 James .. Appellant vs State rep. by Deputy Superintendent of Police Balaviduthi Police Station Karur Dist. (Cr.No.24 of 2002) .. Respondent Criminal appeals preferred under Sec.374(2) of Cr.P.C. against the judgment of the Principal Sessions Judge, Karur, made in S.C.No.102 of 2003 dated 31.7.2007. !For Appellant ... Mr.R.Shanmugasundaram Senior Counsel for Mr.S.Ravi ^For Respondent ... Mr.V.Kasinathan Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
Challenge is made to a judgment of the Principal Sessions Division, Karur,
made in S.C.NO.102 of 2003 whereby the sole accused/appellant stood charged,
tried and found guilty as follows:
CHARGES
GUILTY
SENTENCE
354 IPC
Not guilty
3(1)(xi) S.C./S.T. Act
Not guilty
376 IPC
Guilty
7 years RI and a fine of Rs.1000/- i/d 6 months RI
3(2)(v) SC/ST Act
Guilty
Life imprisonment and a fine of Rs.1000/- i.d. 6 months RI
323 IPC
Not guilty
506(2) IPC
Not guilty
2.The short facts necessary for the disposal of this appeal can be stated
thus:
(a) P.W.1 is the wife of P.W.2. They were living at Old Maniyarampatti.
They belonged to Chakkaliar community, which would be coming under the S.C./S.T.
(Prevention of Atrocities) Act. They were doing coolie work. On 14.5.2002 at
about 11.00 a.m., as usual she went to Ponnanaiyaru Dam for taking firewood. At
that time, the accused/appellant met her and informed her that she could go
nearby Semmalai Adivaram where she could pick firewood. Accordingly, he took
her. When she was found aloof, he pushed her down and committed sexual assault
despite her resistance. She raised distressing cry. P.Ws.3 and 4 who were
nearby, also heard the same. They advised her immediately to go to the place
and inform to the relatives. Accordingly, she returned and informed to P.W.2,
her husband, and accompanied by P.W.2, she went to the Panchayat President and
others. On their advice, they proceeded to the respondent police station. On
18.5.2002 at about 12 Noon, when P.W.10, the Inspector of Police of the
respondent police station, was on duty, she gave Ex.P1, the report, on the
strength of which a case came to be registered in Crime No.24 of 2002 under
Sections 376(b) and 506(2) of IPC. The printed FIR, Ex.P10, was despatched to
the Court. She also produced M.Os.1 to 3, the clothes, which were worn by her
at the time of occurrence.
(b) The Investigator, P.W.10, took up investigation, proceeded to the
scene of occurrence, made an inspection and prepared a rough sketch, Ex.P11.
She was also sent to the Government Hospital for medical examination. P.W.9,
the Doctor, medically examined her and also gave a certificate which is found in
Ex.P7. Pending the investigation, the accused was arrested on 21.6.2002 at
about 3.00 a.m., at Maniyarampatti Road junction, and he was also sent for
medical examination. P.W.8, the Doctor, examined him and found him to be
potent. A certificate was issued to him which is marked as Ex.P6. Further, on
coming to know that she belonged to S.C. community, a certificate was obtained
from the Tahsildar.
(c) The case was taken up for further investigation by P.W.12, the Deputy
Superintendent of Police of the concerned division, who further proceeded with
the investigation and filed the final report on completion of the investigation,
under Sections 376, 506(1) and 323 of IPC and Sec.3(1)(xi) of SC/ST (Prevention
of Atrocities) Act.
3.The case was committed to Court of Sessions, and necessary charges were
framed. In order to substantiate the charges, the prosecution examined 12
witnesses and also relied on 12 exhibits and 3 material objects. On completion
of the evidence on the side of the prosecution, the accused was questioned under
Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence
of the prosecution witnesses, which he flatly denied as false. No defence
witness was examined. The trial Court heard the arguments advanced and also
looked into the materials available. After doing so, it found the
appellant/accused guilty as per the charges and awarded punishment as referred
to above, which is the subject matter of challenge before this Court.
4.Advancing arguments on behalf of the appellant, the learned Senior
Counsel Mr.R.Shanmugasundaram made the following submissions:
(i) The prosecution was successful enough in proving the fact that the
alleged victim belonged to the scheduled caste community by furnishing a
certificate thereto.
(ii) It was a case where the prosecution relied upon the evidence of
P.W.1, the victim. Even her husband P.W.2, was treated hostile. P.Ws.3 and 4,
who, according to P.W.1, saw the occurrence, have also turned hostile, and thus,
the entire case is rested upon the evidence of P.W.1. The Court can sustain a
conviction merely on the evidence of P.W.1 provided if it is reliable and
acceptable. In the instant case, there are number of circumstances pointing to
the fact that her evidence was thoroughly false, and the entire complaint itself
was with a view to get the monetary benefit from the Government.
(iii) According to Ex.P1, her marriage took place two years prior to the
occurrence; but, at the time of the examination before the Court, she has
categorically admitted that her marriage took place before eight years. Even
her evidence would clearly reveal that she lived with P.W.2 for a period of one
year, and thereafter, she was living for sometime with one Subramanian who is
the younger brother of P.W.2, on marriage. During the relevant period, when she
was examined in Court, she has well admitted that she was living with one
Aundiappan, her sister’s husband. All would go to show that even the allegation
that P.W.2 was her husband was nothing but a falsehood.
(iv) According to her, at the time of occurrence, P.Ws.3 and 4 were very
well available, and they also witnessed the occurrence, and immediately, they
advised her to go to the place and inform to the villagers. A reading of Ex.P1
does not disclose the presence of either P.W.3 or P.W.4. In such circumstances,
it is highly improbable that such an occurrence has taken place.
(v) In view of the sexual assault, one would naturally expect her to
immediately go to the village, get the assistance of others and then go to the
police station. The alleged occurrence has taken place on 14.5.2002; but, the
complaint was given only on 18.5.2002. Thus, there was a delay of 4 days. In a
case of rape, such a delay was inordinate. But, no explanation was forthcoming.
On the contrary, she has well admitted that the accused was brought to the
village, and he was enquired even before the complaint was lodged. But,
according to the Investigator, the accused was arrested later when he gave a
confessional statement and was sent for judicial remand.
(vi) According to her, she was pushed down and she sustained an injury on
the nose, and she has got injuries in 4 or 5 places, and two were bleeding
injuries. But, nothing is available to substantiate the same either by medical
evidence or by any other evidence. Hence, it would thoroughly falsify that part
of the case.
(vii) Further, P.W.9, the Doctor, who medically examined her, has given a
categorical opinion that there was no indication of rape found therein.
(viii) In the instant case, she came out with a story to state that she
has got menstrual period. The lower Court has also pointed out that there was
menstrual period, and semen could not be found out. But, in the instant case,
the lower Court has not pointed out that the menstrual period has taken place
preceding the occurrence. Under the circumstances in the absence of any
symptoms of sexual assault, such an occurrence could not have taken place at
all.
(ix) It is true that P.W.2 has been examined before the Court. When he
was examined, he was treated hostile. But, his evidence was available to
indicate that on the date of occurrence, he was not available in the village;
that when he returned to the village next day, she was found weeping; and that
when questioned, she informed him that it was the accused who assaulted her when
she went over to take firewood. At that juncture, the evidence of P.W.2 would
clearly indicate that this was only manipulated.
(x) Further, though the complaint was given on 18.5.2002, the material
objects were recovered on 20.5.2002. But, Ex.P1, the complaint, would reveal
that M.O.1, blouse, M.O.2, saree, and M.O.3, petticoat, were all produced along
with Ex.P1. If to be so, they should have been recovered on 18.5.2002 itself.
But, Form 95 would indicate that they were all recovered only on 20.5.2002; but,
they were not produced on that day. When Form 95 was filed before the Court on
20.5.2002, it has been returned by the Court stating that it must be presented
along with the material objects. It is curious to note that all these material
objects were placed before the Court only on 4.7.2002, and these material
objects were not at all sent for analysis.
(xi) It is pertinent to note that it was nothing but a false case, and it
was only for the purpose of getting monetary benefit. P.W.1 has well admitted
that she got the amount of Rs.25,000/- from the State Government, and the
balance of Rs.75,000/- is to be paid by the Government. All would go to show
that it was nothing but a false case and for monetary benefit. No one of the
above aspects has been considered by the trial Court; but, it found him guilty,
and hence, he is entitled for acquittal in the hands of this Court.
5.The Court heard the learned Additional Public Prosecutor on the above
contentions and made its anxious consideration on the submissions made.
6.The gist of the case of the prosecution as could be seen from the
materials placed before the Court, was that P.W.1, the wife of P.W.2, went for
taking firewood on 14.5.2002 at about 11.00 a.m., at Ponnainaiyaru Dam where on
meeting her, the accused told her that she could pick firewood only from
Semmalai Adivaram, and so saying he took her there, pushed her down and
forcibly committed sexual assault. It is the further case of the prosecution
that the same was known to P.Ws.3 and 4, and on their advice, she came back to
the village and informed to P.W.2 and then gave a complaint on 18.5.2002, and it
was proceeded accordingly. It is well settled proposition of law that in a case
of rape, the Court need not look for any corroboration. The Court is mindful of
the decision of the Apex Court reported in 2006(1) MLJ (CRL.) 52 (STATE OF M.P.
V. DAYAL SAHU), wherein it has been held thus:
“A plethora of decisions by this Court as referred to above would show that once
the statement of the prosecutrix inspires confidence and is accepted by the
Courts as such, conviction can be based only on the solitary evidence of the
prosecutrix, unless there are compelling reasons and no corroboration would be
required unless there are compelling reasons which necessitate the Courts for
corroboration of her statement. Corroboration of testimony of the proseecutrix
as a condition for judicial reliance is not a requirement of law but a guidance
of prudence under the given facts and circumstances. It is also noticed that
minor contradictions or insignificant discrepancies should not be a ground for
throwing out an otherwise reliable prosecution case. Non-examination of the
doctor and non-production of doctor’s report would not be fatal to the
prosecution case, if the statements of the prosecutrix and other prosecution
witnesses inspire confidence. It is also noticed that the court while
acquitting the accused on benefit of doubt should be cautious to see that the
doubt should be a reasonable doubt and it should not reverse the findings of the
guilt on the basis of irrelevant circumstances or mere technicalities.
7.From the very reading of the above decision, it would be quite clear
that in a case of rape, the Court need not look for any corroboration and can
sustain a conviction on the solitary and uncorroborated testimony of the
prosecutrix.; but, the evidence of the prosecutrix must inspire the confidence
of the Court. If it does not inspire the confidence of the Court, there was no
option for the Court than to acquit the accused. In the instant case,
circumstances are so many which would caste doubt on the evidence of P.W.1.
8.The first line of the FIR would start that her marriage took place
before two years with P.W.2. The evidence given by her before the Court, was
that her marriage took place 8 years before with P.W.2; that she lived with him
only for one year; that thereafter, she married one Subramanian, the younger
brother of P.W.2; and that during the relevant period, when she was examined
before the Court, she was living with one Aundiappan, her sister’s husband.
This part of the evidence would clearly indicate that she was not the wife of
P.W.2 at the time of evidence at all.
9.The next circumstance is that the evidence would indicate that in the
nearby place of occurrence, P.Ws.3 and 4 were present, and they heard the
distressing cry of P.W.1, and further, they advised her to go to the village and
inform the villagers. But, nowhere it is stated in Ex.P1, the report, as to the
presence of P.Ws.3 and 4 at all. P.W.1 has deposed before the Court that she
sustained an injury on her nose and on the backside including a bleeding injury
also. But, no corresponding medical evidence is available. All would go to show
that not only they are exaggerations, but also they are nothing but false.
10.As far as the alleged commission of rape by the accused is concerned,
she was examined by P.W.9, the Medical Person, on 21.5.2002, and the Doctor has
given a certificate that there is no evidence of any external injuries and no
evidence of sperms, wherefrom it cannot even be inferred that the rape could
have been committed on her. The explanation sought to be tendered by the
prosecution, was that after the commission of rape, she had the menstrual
period, and hence, semen could not be found out. This cannot be accepted for
the following reasons. Firstly, according to the evidence, the menstrual period
was 4 days prior to the occurrence. Further, the occurrence has taken place on
14.5.2002. She has given the complaint on 18.5.2002. If to be so, why she was
examined by the Doctor on 21.5.2002, no explanation is offered. Had it been
true that such a rape has taken place, there is all possibility of any symptoms
that could be easily fixed by testing the clothes. While the occurrence has
taken place on 14.5.2002, she has given the complaint on 18.5.2002 after a
period of four days. According to Ex.P1, the report, M.Os.1 to 3, blouse, saree
and petticoat respectively, were produced along with Ex.P1. But, Form 95 would
indicate that they were recovered only on 20.5.2002. When Form 95 was presented
before the Court, it was without the material objects. The Court has returned
it for production along with the material objects. But, curiously the material
objects were produced only on 4.7.2002, for the reasons best known to the
Investigator.
11.Added circumstance is that all these material objects were not at all
placed for chemical analysis. All would go to show not only a flaw in
investigation, but also false part of the prosecution case.
12.Apart from the above, she has candidly admitted in her evidence that
the accused was brought to the village and enquired by the police even before
the complaint was given, and it becomes doubtful whether Ex.P1 has come into
existence as put forth by the prosecution.
13.As far as the evidence of P.W.2 is concerned, though he was treated
hostile, he has categorically stated that on the day of occurrence, he was
absent, and on the next day, he was informed by P.W.1 that she was assaulted by
the accused. Now, all would go to show that not only the evidence of P.W.1 was
not corroborated by the medical evidence, but also all attendant circumstances
would clearly reveal that it was nothing but false evidence. As pointed out by
the learned Senior Counsel for the appellant, a suggestion was also made to the
witness by way of question before the lower Court that the case itself was only
foisted for the purpose of getting the monetary benefit from the Government. She
has well admitted in the cross-examination that she has received the amount from
the State Government. In such circumstances, it was not a case where the Court
either by direct evidence or by circumstances attendant could even infer that
such an occurrence could have taken place. The lower Court should have
acquitted the accused. Hence, the judgment of the lower Court has got to be
made undone only by upsetting the same. Accordingly, it is set aside, and the
appellant is acquitted of all the charges levelled against him. He is directed
to be set at liberty forthwith unless his presence is required in connection
with any other case. The fine amount if any paid by him, will be refunded to
him.
14.In the result, this criminal appeal is allowed.
nsv/
To:
1.The Principal Sessions Judge
Karur
2.The Deputy Superintendent of Police
Balaviduthi Police Station
Karur Dist.
(Cr.No.24 of 2002)
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court