IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :25.01.2011 CORAM THE HONOURABLE MR.JUSTICE A. ARUMUGHASWAMY CRIMINAL APPEAL NO.456 of 2004 Munusamy .. Appellant Vs. Inspector of Police Tiruppur North Police station .. Respondent This criminal appeal is preferred under Section 374 (2) of Cr.P.C against the judgment of the Additional Sessions Court Fast Track Court No.5, Coimbatore at Tiruppur District made in S.C.No.250 of 2003 dated 18.12.2003. For Appellant : Mr.P.Nethaji for Mr.N.Senthilkumar For Respondent : Mr.Kumanan Govt.Advocate (Crl. Side) - - - - J U D G M E N T
This appeal is directed against the judgment of the Additional Sessions Court Fast Track Court No.5, Coimbatore sitting at Tiruppur District made in S.C.No.250 of 2003 dated 18.12.2003 sentencing the appellant to undergo conviction for offence under section 147 IPC 1 year RI and fine of Rs.1000/- and for u/s 376(2) (g) IPC, R.I for 10 years and fine Rs.3000/- and the imprisonment to undergo concurrently.
2. Inspector of Police is the complainant. Appellant/accused has filed the appeal against the conviction imposed.
3. P.W.1- Jothi is the victim aged 16 years at the time of incident. She was working in New India company as a tailor. She was married to one Murugan in the year 1994. On 01.02.1997, while she was returning from the company at about 7 p.m near Koteswara lay out five persons surrounded her and threatened her by showing knife and asked her to come with them and took her to Kuzhikadu where already seven or eight persons were there and they compelled her for having sexual inter course by saying that they will kill her if she did not do so. Four or five person has caught hold of her and pulled her on the floor and some persons caught hold of her hands and legs and one by one raped her and out of the said persons she can identify only the present accused since he is staying in the same area where the victim is staying and she has seen him before. Thereafter, she was taken to one Pandian house and kept abducted.
4. The victim husband along with his friends on 09.02.1997 rescued the victim and went to the station and gave complaint. She was examined by the P.W.6-Dr.Parimala on 10.02.1997 at about 06.50 p.m and Ex.P.4 is the medical certificate. P.W.2 is her husband, P.W.3 is their neighbour. P.W.4 and P.W.5 are the mahazar witnesses for seizure and observation mahazar. P.W.6 is the Doctor and P.W.7 is the Inspector of Police who registered the complaint. P.W.8 is the Head Constable. P.W.9 is the Head constable who executed the warrant against the accused. P.W.10 is the Deputy Superintendent of Police.
5. Before the Trial court the prosecution has examined P.Ws.1 to P.W.10 and Exs.P.1 to Ex.P.19 and Ex.D.1 and M.Os.1 to M.O.27 have been marked to prove the offence against the accused. After due trial, the Trial court has convicted the accused under section 147 IPC 1 year RI and fine of Rs.1000/- and for u/s 376(2) (g) IPC, R.I for 10 years and fine Rs.3000/- and the imprisonment to undergo concurrently.
6. The vehement contention of the learned counsel for the appellant is that in the earlier case she has not given incriminating evidence for the occurrence against the other accused which has been tried by the same court in S.C.231 of 2002 in which she has categorically stated that she was not raped by anyone and she gave evidence that two persons have given shelter to P.W.1 after the incident. In such circumstances, the conviction has to be set aside.
7. Learned Government Advocate Criminal side contended that at the earlier occasion she turned hostile, at present she has identified the accused. Hence the offence against the present accused has been made out and the finding has to be confirmed.
8. P.W.1 gave complaint on 09.02.1997 for gang rape. The said case was registered in Cr.No,117/97 u/s. 366,376 I.P.C. In this case regarding the 11 accused earlier case has been tried in S.C.No.231 of 2002. In that case she has been examined as P.W.1. Further on perusal of the exhibits, it is seen that she has turned hostile and she also stated no such incident had taken place. While treating as hostile witness, the learned Public Prosecutor included the name of the present accused and also put it that whether all the 12 persons have raped her. She had replied that nothing has happened which was the statement made by the P.W.1 at the earliest point of time. She has stated that no such incident has taken place. P.W.1 submitted during her cross examination stated that as follows:
VERNACULAR (TAMIL) PORTION DELETED
Therefore from this, it is seen that at the earlier point of time,when 11 accused were tried, she has categorically stated that no such incident had taken place. At the earlier point of time the present accused was absented hence NBW was issued. Thereafter the case has been split up against the present accused and against the remaining accused the case was conducted and the trial court has acquitted the other accused. Thereafter, she had identified the present accused who raped her and she had given evidence that he alone has raped her. Therefore, on the basis of the oral evidence, it is very difficult to come to the conclusion that P.W.1 was raped only by this accused. The next contention by the learned counsel is that even during the police investigation in the earlier point of time she has stated that Pandian, Munusamy and the present accused had taken her to the Pandian house after the occurrence. At the time of cross examination before trial court she has not stated that the present accused is also one among the person who raped her. Therefore, now she cannot give any different version that she was raped by the present accused who is one of the person in the gang and cannot be accepted. Therefore, from this it is seen that P.W.1 is not trustworthy witness and on that basis the accused cannot be punished for such long period eventhough the other part of the investigation has been done properly. P.W.1 has turned hostile on earlier occasion now accepting her evidence the accused cannot be convicted for such a long period. The Trial court has not considered this aspect and relying on the evidence of P.W.1, the Trial court has convicted the accused without proper appreciation. Therefore, I am of the view that the prosecution has not proved the case beyond reasonable doubts and hence, the appellant is entitled for acquittal.
9. In the result, the conviction and sentence imposed on the appellant by the trial court are set aside and the appellant is acquitted of the charges levelled against him. The bail bond, if any executed by the appellant, shall stand terminated and the fine amount if any paid by appellant is ordered to be refunded to him. Accordingly, this criminal appeal is allowed.
kpr
To
1.The Judge
Additional Sessions Court
Fast Track Court No.5,
Coimbatore
2.The Public Prosecutor
High Court,
Chennai
3.The Inspector of Police
Tiruppur North
Police station